2.1 Feminism

Feminist thought is highly varied and includes a range of approaches, perspectives, and explanations for women’s oppression.Footnote ¹ Despite their diversity, all forms of feminist thought share a common core: “Feminism is … the range of committed inquiry and activity dedicated first, to describing women’s subordination-exploring its nature and extent; dedicated second, to asking both how-through what mechanisms, and why-for what complex and interwoven reasons-women continue to occupy that position; and dedicated third to change.”Footnote ² According to feminists, women’s subordination is, both historically and at present, the result of patriarchy.Footnote ³ Silvia Walby defines patriarchy as “a system of social structures and practices in which men dominate, oppress and exploit women.”Footnote ⁴ This definition emphasizes the structural (rather than individual) nature of patriarchy that employs social structures and social practices to maintain the subordination of women to men.Footnote ⁵ Many of the social structures/practices employed by patriarchy are designed to restrict women’s autonomy over their bodies. These structures and practices restrict various aspects of women’s control over their bodies, including control over their reproductive abilities, over their sexuality and their appearances, and even over their presence in the public sphere. One legal structure that enables the subordination of women’s bodies to the interests of men and of communities is the lack of recognition on the international level, as well as in many countries, of reproductive rights or of a human right to safe and legal abortion. This lack enables courts around the world to affirm the denial of women’s rights to reproductive health and to the autonomy to decide to discontinue a pregnancy.Footnote ⁶ One example is the USA, where fifty years after the constitutional right to have an abortion in the first trimester of the pregnancy was recognized by the American Supreme Court in Roe v. Wade, it was eliminated in 2022 in Dobbs v. Jackson, in which the American Supreme Court held that Roe was wrongly decided and that the American Constitution does not protect women’s right to decide to have an abortion, leaving the decision whether to allow women to have an abortion, and under what conditions, to the states.Footnote ⁷

A different patriarchal sociocultural structure that restricts women’s autonomy and subordinates their bodies to the interests of men is the imposition of a normative femininity upon the female body. Normative femininity demands conformity to highly oppressive standards of beauty, and of dress and appearance in general, whose attainment requires disciplinary practices (in the Foucauldian sense) such as norms of feminine body comportment, dieting, physical exercise, hair care, skin care, covering and uncovering, and so on.Footnote ⁸ Importantly, these standards vary widely between communities, from extensive exposure to thorough covering, depending on the forms of patriarchal control exercised in each community. The same objectification of women’s bodies, which entails covering them in religious private patriarchy, leads to their complete uncovering on billboards and in pornography and to the enforcement of a strict beauty code in Western liberal public patriarchy.Footnote ⁹

2.2 Liberalism

While liberalism has many variants, they all constitute one tradition. According to John Gray, the liberal conception in all its forms has the following four elements – it is individualist, egalitarian, universalist, and meliorist:

One important distinction between variants of liberalism is between Millian autonomy-based liberalism, which places human autonomy at the center, and toleration-based liberalism, such as Rawls’, for which toleration is the fundamental value of liberalism. Another important distinction is between classical liberalism, whose central focus is on individual liberty and private property, and social justice liberalism, which is more committed to reducing economic inequalities.Footnote ¹¹

The historical origin of liberalism can be traced to the debate concerning the proper relationship between religion and the state.Footnote ¹² Two seemingly contradictory forces shaped liberalism’s attitude toward religion. On the one hand, the association of religion with superstition, fanaticism, intolerance, and reaction can explain the liberal impulse to exclude religion from the public life. On the other hand, religious toleration has always enjoyed primacy in liberal theory in general and in American constitutional theory in particular. The appreciation of the importance of religion to its followers, along with the recognition of its divisive potential, has led liberals to exclude religion from public sphere, while at the same time giving it a largely free hand in the private sphere.Footnote ¹³

On a more fundamental level, the separation between religion and the state advocated by liberalism can be traced to the fact that liberalism was founded on the rejection of the divine right of the king to rule over his people. Liberalism replaced this notion with a theory of political authority derived from the consent of the governed as free, equal, and rational persons. In his Two Treatises of Government, Locke rejected the divine right theory, which stipulated that the only legitimate power in the world was the power God ordained to Adam as the father of the species and from him to the kings as his direct descendants and fathers of nations. According to this theory, the divine right of the king over his people was identical to the divine right of the father over his family, both stemming from the Godly ordained and limitless power of the father.Footnote ¹⁴

While Locke was adamant in his outright rejection of the divine right of the king, he was much more receptive to the divine right of the father over his family. In fact, although Locke rejected the idea that the man had political power over his wife (i.e., the power of life and death, which the feudal understanding of the divine right of the father would seem to suggest), he nevertheless maintained that the man had conjugal power over his wife, and that a woman was subject to her husband by order of God and in accordance with the laws of nature. Furthermore, religious teachings served as a basis for liberalism’s exclusion of women from the public sphere and from the political rights of bourgeois men as free, equal, and rational persons, and for the relegation of women to the domestic sphere in which they were subjected to the divine rule of their husbands.Footnote ¹⁵ It was women’s intellectual and moral inferiority, their irrationality, and their responsibility for the existence of sin in the world, as taught by the church fathers, that justified excluding women from the social contract.Footnote ¹⁶

We see that from its inception, liberalism, with its promise of equality and freedom and separation between religion and the state, held different consequences for men and women. While men gained the right to equality and freedom in the public sphere and the right to practice their religion without hindrance in the private sphere, women were completely excluded from the public sphere and subjugated to men in the private sphere, at least in part based on religious teachings, a subjugation that continued even after the political separation between religion and the state was established.Footnote ¹⁷

Liberalism’s late acceptance of women’s entrance into the public sphere has not changed its fundamental adherence to the public–private distinction. To quote Isaiah Berlin’s famous words: “[T]here are frontiers, not artificially drawn, within which men should be inviolable, these frontiers being defined in terms of rules so long and widely accepted that their observance has entered into the very conception of what it is to be a normal human being…”Footnote ¹⁸

Even egalitarian liberals such as Ronald Dworkin, who maintained that no reasonable political theory could subordinate equality to liberty,Footnote ¹⁹ has explicitly restricted equality’s reach to the public sphere: “The liberal conception of equality is a principle of political organization that is required by justice, not a way of life for individuals, and liberals, as such, are indifferent as to whether people choose to … behave as liberals are supposed to prefer.”Footnote ²⁰

The result of the liberal refusal to intervene in the private sphere in which women spend much of their time taking care of their children and family, often encountering overt and covert messages regarding their innate inferiority, is that when these women try to compete in the public sphere, they find themselves at a marked disadvantage. Thus, the powerful feminist slogan “the personal is political” does not point only to the political nature of the private sphere but also to how the private, personal sphere largely determines women’s success in the public sphere, as persistent data repeatedly shows.Footnote ²¹ Moreover, relegating patriarchy and patriarchal religion to the private sphere has neither depoliticized patriarchy and patriarchal religion, nor has it disempowered them. Quite to the contrary, Feminist Legal Theorist Frances Olsen astutely points out that power holders in liberal societies gain legitimacy and immunity from attack, and a way to maintain the status quo to their advantage, by characterizing their power as private.Footnote ²² Powerful patriarchal religious entities use their position in the private sphere both to protect their own interests and to immunize their discriminatory actions against women from scrutiny and interference. Simultaneously, they characterize any power deployed against them as public and claim that it is unconstitutionally and unjustly oppressive toward them.Footnote ²³

In his essay Two Concepts of Liberty, Isaiah Berlin offered a distinction that has become germane to much of liberal thought between negative freedom and positive freedom. While negative freedom is measured through an answer to the question “How far does government interfere with me?” and implies freedom from, positive freedom is measured through an answer to the question “who governs me?” and implies freedom to.Footnote ²⁴ Fundamental freedoms, such as freedom of expression, freedom of religion, and freedom of association, are understood in liberal theory as negative freedoms that require protecting the individual against state interference with them. However, feminist critics of liberalism have pointed out that true freedom cannot be achieved solely through the noninterference of the state in the actions of individuals, but may sometimes require an active state involvement in the actions of individuals to ensure that all individuals can enjoy these freedoms equally. While egalitarian liberals such as Rawls and Dworkin support some state intervention in the market to reduce economic inequalities, they object to such intervention in what they conceive as the private, nonpolitical, sphere of religion, culture, and the family. Thereby, they allow patriarchal religious entities to use the public–private distinction both as a shield and as a sword, to buttress their own power and to disempower women.Footnote ²⁵

2.3 The Feminist Critique of Political Liberalism

The feminist critique of liberalism goes beyond a critique of its general patriarchal origins to an analysis of the way in which liberal concepts maintain and promote a patriarchal state structure that preserves, normalizes, and masks the subordination of women. The critique in this section will focus on the principles of political liberalism, which to a large extent reflect the practice of most liberal democracies, and show how the liberal choice to allow the flourishing of bigotry and intolerance in the private sphere, and require respect for equality only in the public sphere, has made the status and rights of women in society exceedingly vulnerable and has allowed religious conservatives to make use of liberal concepts to restrict, rather than protect, the rights of women.

The distinction between the public and the private is complex and ambiguous and varies between traditions of thought.Footnote ²⁶ The discussion of the public and the private in this section refers to Rawls’ distinction between the public political domain which includes the basic structure of society and its basic institutions, and the private nonpolitical domain, which includes the personal and familial (which Rawls describes as affectional) and the associational (which is ideological and voluntary).Footnote ²⁷

As already discussed, the feminist claim against liberalism’s public-private distinction holds that by insisting that certain social structures, actions, and ideologies are part of an inviolable private sphere within which almost no state involvement should be tolerated, liberals have often been too quick to free themselves from the obligation to critique unjust and discriminatory aspects of such structures, actions, or ideologies, and to allow their unhindered existence and growth. The outcome has been particularly damaging for women, whose entire existence has, for a long time, been relegated to the private sphere, and who continue to disproportionately bear the brunt of the subordination and exploitation prevalent in this sphere.

It is important to note that most feminist critiques of the public–private distinction are internal critiques that acknowledge the validity of the distinction yet dispute the specific uses of the terms “public” and “private,” and the specific arrangements designated to each.Footnote ²⁸ Accordingly, the following should be read as an internal critique of the public–private distinction and its corollary distinction between the political and the nonpolitical within political liberalism.Footnote ²⁹

Two central modern liberal theories consolidating and expanding the public–private distinction and the immunity it generates to structures, actions, or ideologies attributed to the private sphere have been political liberalism and liberal multiculturalism.Footnote ³⁰ While the latter is specifically concerned with shielding minority cultures from the corrosive influence of majoritarian liberal society, the former is engaged with finding a general liberal framework within which the peaceful coexistence of liberal, nonliberal and illiberal comprehensive doctrines can be guaranteed.

Despite their different foci, both theories are highly accommodationist toward nonliberal, and illiberal comprehensive doctrines, and liberal multiculturalism even calls on the liberal state to provide proactive assistance to illiberal minority cultures and has been criticized by feminists for doing so.Footnote ³¹ However, because this book is concerned mostly with the assault on women’s rights by majoritarian groups, the analysis in this section will focus on the feminist critique of political liberalism and its implications for political liberalism’s ability to protect women from majoritarian religious conservative prejudice. References to multiculturalism will be made where relevant to the analysis.

In his book “Political Liberalism,” which has become the blueprint for many liberal theorists and policymakers, John Rawls has introduced a new variant of liberalism–political liberalism (PL).Footnote ³² Rawls argues that political, rather than comprehensive, liberalism is the appropriate political theory for modern heterogeneous democratic societies in which a pluralism of incompatible yet reasonable comprehensive religious, philosophical, and moral doctrines exists.Footnote ³³ Rawls describes comprehensive doctrines as doctrines that apply not only to the political organization of society but that also include conceptions as to what is of value in human life, ideals of personal character, friendship, familial and associational relationships, and other aspects that inform our conduct and even our life as a whole.Footnote ³⁴ The purpose of PL, according to Rawls, is to lay out the framework for a constitutional democratic regime that will enable citizens who embrace reasonable and incompatible comprehensive doctrines to live together and maintain over time a stable and just society of free and equal citizens.Footnote ³⁵ Accordingly, Rawls proposes a political and constitutional framework within which, he hopes, “deeply opposed though reasonable comprehensive doctrines may live together and all affirm the political conception of a constitutional regime.”Footnote ³⁶ Put differently, in his vision for liberal democracies, Rawls attempts to formulate a liberal political and constitutional conception that religious, nonliberal, and even illiberal doctrines may be able to endorse.Footnote ³⁷ While this attempt was enthusiastically embraced by many liberal thinkers, feminists have, from early on, been suspicious of the ability of a political and constitutional structure that grants extensive leeway and respect to nonliberal and illiberal doctrines to live up to its promise of maintaining over time a stable and just society of free and equal citizens.

One of the most insightful feminist critics of Rawls’ Theory of Justice and later of his political liberalism has been Susan Okin.Footnote ³⁸ Okin, along with other feminists, has pointed out early on that in A Theory of Justice, Rawls omits sex from the list of personal characteristics that are veiled from those in the original position, and that he specifies that those who reason in the original position are all “heads of families.”Footnote ³⁹ By doing so, Okin argued, Rawls is ignoring the social institution of gender and the sexual division of labor in the household, as well as their unequal and unjust effects on girls and women.Footnote ⁴⁰ Furthermore, she observed, “the questions of whether and how the family, in its traditional or any other form, is a just social institution and how or whether it translates the principles of justice into social practice are never raised.” Okin noted that this was particularly disturbing since Rawls acknowledges that the family plays a prominent role in the moral development of citizens, and his account of the development of a sense of justice that he considers essential to the stability of a just society, relies heavily on the justness of families.Footnote ⁴¹ However, if many families are not truly just, and teach their members intolerance and exploitation of women, then how can children whose moral development takes place in these families become just citizens who embrace unreservedly the political equality between the sexes or indeed other forms of political equality?

The feminist critique of liberalism’s failure to address discrimination and injustice in the private sphere has extended well beyond the family and gender relations. Following the publication of political liberalism, this critique expanded to include PL’s fundamental distinction between the political sphere and the nonpolitical sphere and the resulting protection and even legitimation that it grants to almost all sexist and otherwise intolerant comprehensive doctrines.Footnote ⁴² In a nutshell, the crux of the problem with PL lies in its organizing principle, which is the formulation of a liberal political conception of justice that is thin enough to gain the endorsement of religious, nonliberal, and illiberal, comprehensive doctrines, but at the same time supposedly thick enough to protect the rights of all citizens as free and equal.Footnote ⁴³ If successful, PL aspires to maintain, over time, an overlapping consensus between citizens, in which all citizens commit to a liberal political conception of justice, although some of them, and perhaps many of them, simultaneously affirm comprehensive doctrines that are nonliberal and even illiberal.

There are two major errors in the theory of PL and in the practice on which it is based and which it advocates. PL’s first error is that through its use of concepts such as reasonable comprehensive doctrines, reasonable overlapping consensus, impartiality, and the idea of public reason, it effectively shields illiberal doctrines from criticism, allowing them to flourish and acquire legitimation, and provides insufficient protection to the rights of citizens as free and equal.Footnote ⁴⁴ PL’s second error is that it is naïve, and indeed misguided, to assume that citizens who adhere to nonliberal and illiberal comprehensive doctrines will simultaneously develop a genuine commitment to a liberal political conception of justice. I will briefly elaborate on PL’s two errors, starting with the looseness of its concepts and continuing with its misguided assumptions. PL’s concept of a reasonable comprehensive doctrine is deliberately wide and loose. In order to count as reasonable, a doctrine need only be a more or less coherent and consistent exercise of theoretical as well as practical reason, that draws on a tradition of thought, and is stable over time but still open to change for reasons that it views as good and sufficient.Footnote ⁴⁵ The only comprehensive doctrines that Rawls finds unreasonable are doctrines that do not endorse some form of liberty of conscience and freedom of thought; doctrines that support egregious violations of rights such as slavery in ancient Athens or in the antebellum South; and doctrines that espouse certain kinds of religious fundamentalism.Footnote ⁴⁶

As Okin points out, in Rawls’ account, religions that both preach and practice highly sexist modes of life are all seen as reasonable. Since the basic texts of Judaism, Christianity, and Islam are all “rife with sexism,” and orthodox forms of these religions “still discriminate against women and reinforce their subordination within religious practices, and within and outside the family, in numerous significant ways”, many of the doctrines that Rawls views as reasonable and legitimate are in fact illiberal doctrines that do not view women as free and equal persons.Footnote ⁴⁷ Moreover, according to Rawls, illiberal comprehensive doctrines, both religious and nonreligious, that advocate gender, sexual orientation, racial, and religious discrimination, would still count as reasonable as long as they are willing to accept the liberal political conception of justice.Footnote ⁴⁸

Another important PL concept that serves to buttress the power and legitimacy of illiberal doctrines is impartiality. Impartiality requires PL not to attack, criticize, or reject any comprehensive doctrine defined as reasonable or any of the views expressed in it.Footnote ⁴⁹ Rawls explains that since the judgments rendered by these doctrines are seen as internal and nonpolitical, they need not be based on public reason and can only be evaluated from within the doctrines themselves.Footnote ⁵⁰ Thus, political liberals remain impartial even in the face of egregiously sexist and racist views expressed by comprehensive doctrines, as long as these views do not directly shape decisions regarding constitutional essentials and questions of basic justice. Only decisions of this latter kind must be supported by reasons that are compatible with public reason and with the political values expressed by a political liberal conception of justice. Decisions of this kind must therefore be justified in ways that all citizens, as free and equal, are able to endorse in light of their own reason.Footnote ⁵¹

However, even this narrow protection for citizens’ rights is easy to bypass, since almost any reason internal to a particularistic comprehensive doctrine can be expressed in terms that disguise its particularistic origins and that are compatible with public reason. An important example concerning abortion is the U.S. Supreme Court case Harris v. McRae, in which a challenge was made to the Hyde amendment which prohibits federal funding of abortions for Medicaid recipients except when the continuation of the pregnancy would endanger the woman’s life.Footnote ⁵² The plaintiffs in McRae argued that the Hyde amendment was a violation of the Establishment Clause (and in Rawlsian terms, of the idea of public reason) because it codified the teachings of the Roman Catholic Church with regard to abortions. The Supreme Court rejected this argument on the ground that the fact that the law happens to coincide with the teachings of a certain religion does not lead to a violation of the Establishment Clause as long as there is a legitimate secular purpose for the law.Footnote ⁵³ Beyond the Court’s intentional failure to take notice of the connection between the law and Roman Catholic teachings, the secular purpose that the Court found is particularly instructive. According to the Court, denying federal funding for abortions is not an establishment of religion because “[t]he Hyde amendment … is as much a reflection of ‘traditionalist’ values towards abortion, as it is an embodiment of the views of any particular religion.”Footnote ⁵⁴ This is but one example of how easily particularistic religious comprehensive doctrines can be disguised as traditionalist, nonreligious, public reason and legislated into law even in countries that allegedly maintain strict separation between religion and the state.Footnote ⁵⁵ The Dobbs decision, eliminating women’s right to abortion in the USA based on the nation’s “history and traditions” is another example.Footnote ⁵⁶

Moreover, scholars researching traditionalists/conservative religious actors, such as the Catholic Church and traditionalists within Russian Orthodox Christianity, have argued that while these religious actors translate religious arguments into secular arguments, they do so only strategically in order to influence the public debate and push forward a thoroughly antiliberal agenda, while at the same time remaining closed to any possibility of change in their own positions.Footnote ⁵⁷ For example, in order to advance laws that prohibit blasphemy, these traditionalists will refrain from invoking the fourth commandment that prohibits taking the name of the Lord in vain. Instead, they will offer the harm to the integrity of individual religious believers as a secular justification that may restrict blasphemous speech within a liberal political conception.Footnote ⁵⁸ However, their use of this argument will be purely strategic and will not indicate any genuine willingness to be open to other perspectives on the matter. Thus, PL’s first error has for long allowed nonliberal and illiberal comprehensive doctrines to flourish and gain strength in liberal societies, and use that strength, in both the private and the public spheres, to restrict the rights of women and other disempowered groups.

PL’s second error is its naïve and indeed misguided assumption that citizens who adhere to nonliberal and illiberal comprehensive doctrines will simultaneously develop a genuine commitment to a liberal political conception of justice. The recent rise of right-wing religious and nationalist populism in many parts of the world, and its successful mobilization of religious and nationalist illiberal groups against the liberal state, have clearly exposed the frailness of the extant liberal political framework.Footnote ⁵⁹ Rawls’ aspiration to persuade adherents of nonliberal and illiberal comprehensive doctrines to develop a genuine commitment to a liberal political conception of justice is embodied in PL’s concept of a reasonable overlapping consensus. Rawls believes that a reasonable overlapping consensus over a shared liberal political conception of justice can be reached when “the political conception is supported by the reasonable though opposing religious, philosophical, and moral doctrines that gain a significant body of adherents and endure over time from generation to the next.”Footnote ⁶⁰

However, Rawls concedes that his theory of political liberalism cannot prove, and does not even attempt to prove, that the reasonable overlapping consensus on which the successful realization of the theory is predicated will indeed form around a liberal political conception of justice in any given setting. Thus, he explains, the most PL does “is to present a freestanding liberal political conception that does not oppose comprehensive doctrines on their own ground and does not preclude the possibility of an overlapping consensus for the right reasons.”Footnote ⁶¹ Moreover, he acknowledges that while achieving an overlapping consensus may be theoretically possible, under many historical conditions efforts to achieve it may be overwhelmed by the success of unreasonable doctrines, and consequently, the attempt to formulate an overlapping consensus will fail.Footnote ⁶² In my view, such failure is an almost inevitable result of Rawls’ wide definition of reasonable comprehensive doctrines, and many of the doctrines that he defines as reasonable are doctrines that cannot realistically be expected to embrace a liberal political conception of justice except for strategic reasons.

Despite his acknowledgment that maintaining overtime an overlapping consensus over a liberal political conception of justice is not guaranteed, Rawls bases his entire theory on the success of such an endeavor. He acknowledges that if the initial acquiescence to a liberal political conception as a modus vivendi is to turn, over generations, into a stable and enduring overlapping consensus, “a certain looseness in our comprehensive views, as well as their being not fully, but only partially comprehensive, may be particularly significant.”Footnote ⁶³ He hopes that when citizens whose views are loose and only partially comprehensive are faced with an incompatibility “between the political conception and their comprehensive doctrines, then they might very well adjust or revise the latter rather than reject the political conception.”Footnote ⁶⁴ This liberal expectancy – the expectation that illiberal doctrines would liberalize over time upon realizing the advantages of liberalism over illiberalism – is shared by other liberal theorists such as Will Kymlicka and Nancy Rosenblum, and serves as a basis for their respective theories of liberal multiculturalism and of the appropriate relations between the liberal state and private associations.Footnote ⁶⁵ Unfortunately, liberal expectancy seems overly optimistic, and there is no empirical evidence to back it.Footnote ⁶⁶

Furthermore, Rawls’ reliance on the looseness and incompleteness of comprehensive doctrines ignores the fact that in many liberal democracies significant parts of the population adhere to fully comprehensive illiberal doctrines (mostly, but not only, religious) that are neither loose nor incomplete, and that resist any internal liberalization and even work diligently and successfully to resist and reverse liberalization of state laws in areas such as women’s reproductive rights or LGBTIQ rights.Footnote ⁶⁷ Another way of framing the problem with Rawls’ wide definition of reasonable comprehensive doctrines was suggested by Stoeckl, who argues that Rawls implicitly assumes that there are only two kinds of religious doctrines – fundamentalist doctrines, which are the minority and are unreasonable and therefore shunned, and all remaining religious doctrines, which he designates as reasonable and implicitly assumes that they are all liberal doctrines (at least in the sense that they willingly adopt a liberal political conception of justice that treats all citizens as free and equal).Footnote ⁶⁸ Stoeckl argues that the empirical study of religious actors reveals that there is a third group of religious actors which she calls “traditionalists.”Footnote ⁶⁹ Traditionalists are not fundamentalists, and therefore they are not shunned either by political liberalism or by society.Footnote ⁷⁰ However, at the same time, traditionalists are unwilling to adopt a liberal political conception of justice that treats all citizens as free and equal, and they use their extensive political power, both internally within states and internationally, in order to change the consensus over the appropriate conception of justice in society.Footnote ⁷¹

Importantly, the religious resurgence across the world in recent decades has been characterized by increased support for such traditionalist religious groups with a parallel decline in the more moderate religious groups.Footnote ⁷² I would argue that political liberalism’s designation of almost all comprehensive doctrines as reasonable and its failure to take into account the many religious traditionalist groups, as well as many nonreligious illiberal groups, that are all committed to shifting the overlapping consensus toward nonliberal conceptions of justice, makes it far too optimistic with regard to the possibility of maintaining over time a stable and just society of free and equal citizens.

As Yael Tamir has rightly argued in the context of debates around multiculturalism, the most that can be expected from illiberal communities is to agree strategically to maintain a modus vivendi within a liberal political structure in order to protect their own status and rights.Footnote ⁷³ However, once illiberal communities obtain enough power to challenge and change the liberal political structure to their own advantage, they will do so, since “[t]he compromise from the point of view of the illiberal community is not even a principled modus vivendi, based on a ‘live and let live,’ but a conditional one which is based on fear rather than respect.”Footnote ⁷⁴

This important insight is all the more true with respect to nonliberal and illiberal religious and nationalist majoritarian groups who have no incentive to accept a liberal modus vivendi, since their own rights are never in any serious danger. Moreover, by strategically using their aggregate political power, these groups have the ability to redesign the public and institutional spheres and restrict the rights of others.Footnote ⁷⁵ Clearly, Rawls’s theory of political liberalism inadequately addresses the inevitable and deep conflict between patriarchal religion and women’s rights occurring in the real world. In Chapter 6 I will address the connection between this inadequacy and the rise of right-wing religious and nationalist populism. In the Conclusion of the book, I will argue that if Rawls’ theory is taken to its logical conclusion, and if it is to deal coherently with conditions in the real world, it must lead to a rejection of all conceptions of the good, both religious and nonreligious, that do not espouse women’s equality, as unreasonable comprehensive doctrines.

2.4 Capitalism and the Dichotomy between Love and Justice

The public–private distinction is closely related to another dichotomy within philosophy and religion, the one between love and justice. These two distinctions are interrelated conceptual tools used by patriarchal religion and in political philosophy in the service of patriarchy and of the capitalist state.Footnote ⁷⁶

The connections between various mainstream religions and capitalism are well known. As key sociologists such as Emile Durkheim, Vilfredo Pareto, and Max Weber have shown, a religious belief is one of the main components that rule the social order, and economic attitudes of social groups may derive from religious conceptions. Weber, in particular, in his book The Protestant Ethic and the Spirit of Capitalism, claims that Christianity (or some versions of it) enabled and encouraged the development of Western capitalism, which he defines as a rational pursuit of continual accumulation of wealth for its own sake.Footnote ⁷⁷ Although prima facie a religious devotion is, or is expected to be, accompanied by rejection of mundane affairs in general, and by contempt to wealth in particular, Weber argues that certain types of Protestantism favor rational pursuit of wealth, and even ascribe it with a moral and religious value. While there are Christian theologians that reject capitalism, many others, mainly in the US, support capitalism and emphasize its compatibility with Christian values – the notion that the human race is the summit of creation, which is destined to prosper and dominate others; the focus on personal responsibility, which is manifested in rewarding the diligent and punishing the lazy; and the important role personal freedom plays within capitalism. These pro-capitalist theologians further adopt the Smithean idea that self-seeking furthers the common good; even more so since the fallen human being, they claim, cannot be expected to act otherwise.Footnote ⁷⁸

The distinction between the public and the private is one of the most important philosophical and political features of the Western liberal capitalist state. This separation serves several distinct but interrelated purposes. These include the relegation of women to the private sphere and the designation of the public sphere as the sphere of men; the differentiation between the private market and public government; and the demarcation of the desirable boundaries between religion and the state. This distinction and the concomitant relegation of women to the private, unremunerated sphere has been a constitutive feature of capitalism. The capitalist market is dependent on women’s care and maintenance work in the home to allow the men to fully dedicate themselves to their work. Similarly, the capitalist state relies on women’s unremunerated care work – taking care of the young, the sick, the elderly, and the needy – as a substitute for its dearth of welfare services.Footnote ⁷⁹ Mainstream Christian churches reify and promote the capitalist structure by preaching to women the importance of self-sacrifice and of dedication to fulfilling the needs of others, providing domestic services, and volunteering in the community. Furthermore, these churches have a strong interest in keeping women in the private sphere because religious women are those who sustain these churches through their participation, dedication, and volunteer work, and thus form the foundation of the churches’ power.Footnote ⁸⁰

The public–private distinction and the dichotomy between love and justice are man-made and interrelated. While in the public sphere of society and the state, the rule of justice is expected to prevail, within the private sphere of the family, only love rules. Feminist thinkers have observed that these dichotomies are deliberately and ideologically used to justify the continuation of a hierarchic and discriminatory capitalist social structure in which men dominate and women’s inferiority is maintained.Footnote ⁸¹ By presenting women’s exploitation in the private sphere as a mere manifestation of feminine love, women’s subordination is being normalized and perpetuated. Moreover, women’s unremunerated labor of love in the private sphere releases men, religious organizations, and the state from the burden of responding to the care needs of the weak and the needy in the public sphere.

The dichotomy between love and justice helps to foster the ideal of the loving woman by justifying the sacrifices that each woman must make to become the perfect woman, wife, and mother. The ideal of the loving woman presents a list of “duties of love” that each woman must abide by; yet a critical examination immediately exposes these duties as unjust. Virginia Woolf sharply portrays the ideal of “Angel in the House” that prevailed in Victorian England: A woman must be charming, utterly unselfish, and sacrifice herself daily, excel in the difficult arts of family life, never have a mind or a wish of her own, but always sympathize with the minds and wishes of others.Footnote ⁸² Even if some elements of this description no longer fit the modern woman, the ideal of feminine sacrifice still plays a crucial role in the self-definition of both women and men, as well as in the social structure.Footnote ⁸³ Patriarchal religion is one of the main engines for such indoctrination.Footnote ⁸⁴

Similar, albeit more subtle, indoctrination can be detected in mainstream political philosophy. In her writings, Susan Moller Okin has critiqued important political philosophers such as Rawls and Sandel for refusing to apply the principles of justice to families.Footnote ⁸⁵ Okin criticizes Sandel for arguing that families are beyond or above justice because they are characterized by nobler virtues such as love, and for suggesting that the application of the principles of justice to the family is undesirable because it would lead to “the loss of certain ‘nobler virtues and more favorable blessings.’”Footnote ⁸⁶ Okin rejects the claim that the application of principles of justice would result in the loss of love and argues that justice is needed as an essential moral foundation even in social groupings such as families, which are governed by moral virtues such as love, affection, and generosity.Footnote ⁸⁷

The dichotomy between love and justice doesn’t only affect women’s rights in the private sphere but also compromises their right to justice in the public sphere. A good example from the USA is the defeat of the ERA – the Equal Rights Amendment – which was defeated by constituents who were persuaded that granting women a constitutional right to equality in the public sphere would jeopardize their role as wives and mothers in the private sphere.Footnote ⁸⁸ The failure to pass the ERA can be largely attributed to the mobilization of conservative religious groups who portrayed it as anti-family and threatening to morality and traditional values.Footnote ⁸⁹

2.5 The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and a Telling Comparison between the Treatment of Racism and Sexism

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) is the centerpiece of the international protection of women’s rights.Footnote ⁹⁰ As will be detailed below, it includes important provisions requiring states to take proactive measures to change religious and cultural practices that discriminate against women and has therefore earned the ire of religious international actors as well as of the liberal United States. In the Conclusion of the book, I will claim that taking proactive legal measures, including in the private sphere, as required by CEDAW, is the only way to combat discrimination against women. Nevertheless, while CEDAW’s proactive approach is an improvement over religious and classical liberal approaches to discrimination against women, an examination of international instruments for the protection of human rights reveals that international law applies quite different standards to race discrimination and to sex discrimination, and that international law unjustly exhibits a far more lenient approach to the violation of women’s rights than it does to the violation of the rights of racial minorities.

On the international level, a multitude of conventions and courts rightly prohibit all forms of racism, on any ground, and create extensive enforcement mechanisms, including criminal sanctions.Footnote ⁹¹ The International Court of Justice has wholly rejected South African apartheid, although it was based on strong religious beliefs.Footnote ⁹² Also, the preamble to the International Convention on the Elimination of All Forms of Racial Discrimination (“Race Convention”) states the following:

In contrast, the strongest language that can be found in the preamble to CEDAW states:

While racial discrimination and the idea of racial supremacy are intrinsically bad – scientifically false, morally condemnable, socially unjust, and dangerous, without justification, and repugnant to the ideals of any human society – sex discrimination is none of that. The chief problem with sex discrimination, according to international law, is factual rather than intrinsic: it is an obstacle to women’s equal participation in the life of their countries, hampers the growth of the prosperity of society and the family, and decreases women’s ability to contribute to their countries and to humanity. Further, the main victim of sex discrimination is not the woman herself, but society. Thus, reading the preamble to CEDAW, especially when contrasted with the preamble to the Race Convention, one could conclude two things. First, there is nothing intrinsically wrong with sex discrimination, and if the factual problems discussed in the preamble would somehow be solved, then sex discrimination would no longer be problematic. Second, as society is the main victim of sex discrimination, it should have the right to decide that it is willing to bear the burden of having at its service women whose potentials are not fully developed, and to continue to discriminate based on sex. Though this reading of CEDAW may seem incongruous, it reflects the way the international community tends to view discrimination against women that is motivated by religious and cultural precepts. One of the obstacles women face in international law is the consensus among states that oppression based on race is considerably more serious than sex-based oppression, and that states can legitimately shirk their obligations to combat the latter.Footnote ⁹⁵

In two of its central provisions, Articles Two and Five, CEDAW proclaims that states should take all appropriate measures to modify existing legislation, customs, practices, and social and cultural patterns of conduct that discriminate against women or that are based on the idea of the inferiority or superiority of one of the sexes.Footnote ⁹⁶ The aforementioned articles of CEDAW instruct the States Parties to actively intervene in people’s social and cultural practices in order to eliminate those practices that discriminate against women. The articles do not specifically refer to religious practices, but the reference in Article 5(a) to the elimination of “customary and all other practices” no doubt includes religiously based practices.Footnote ⁹⁷ Further, Article 2(e) of the Convention specifically instructs the States Parties to eliminate any discrimination by individuals and by organizations, thereby imposing a duty on the state to fight discrimination against women in the private and public spheres. In fact, one of the major objections the U.S. has to ratifying the Convention is that it may conflict with the constitutional right to freedom of association.Footnote ⁹⁸

Moreover, many states have made reservations to these provisions, mainly on religious grounds, stating that these provisions are inapplicable as far as they contradict their domestic or religious laws as interpreted by them. The result is that those countries whose religious and cultural practices are the most oppressive to women have no international obligation to change these practices. This creates the impression that unlike other international human rights treaties, such as the Race Convention, CEDAW is not a binding international obligation, and that these reservations should not “be scrutinized against the yardstick of international standards of equality for women because of the religious and cultural sensitivity of the subject matter.”Footnote ⁹⁹ In contrast to the multitude of reservations from CEDAW, there are few substantive reservations to the Race Convention, and none of them are on the basis of religion or culture.Footnote ¹⁰⁰ Perhaps the most telling difference between race and sex discrimination in international law is that while the prohibition on race discrimination is considered jus cogens and is therefore non-derogable, the prohibition against sex discrimination is not.Footnote ¹⁰¹

Thus, when compared to the strong language used in international documents prohibiting race discrimination, CEDAW’s more qualified and reticent vocabulary gives the states much more latitude in implementing its provisions. Even so, CEDAW has garnered widespread reservations, especially on religious grounds, from nonliberal countries. Moreover, the United States has to date refused to ratify CEDAW, on allegedly liberal grounds, due to CEDAW’s call for alleviation of indirect as well as direct discrimination in both the public and the private spheres. American critics of CEDAW have warned that ratifying it would undermine families, heterosexual marriage, and state and local authority over the law of households.Footnote ¹⁰²

From a feminist perspective, it is easy to see why a liberal regime of separation between religion and the state, such as the one in the USA, which respects almost any religious prejudice or practice, no matter how damaging it might be to women, and which reveres freedom of association above all else, would be found wanting when measured against CEDAW’s standard for women’s equality. While the Convention has been only partly successful in combating religious and cultural practices that discriminate against women, mainly due to its weak enforcement mechanisms and the extensive use of reservations by States Parties, the obligations it places on States Parties, if properly followed, are the only possible means of creating the conditions necessary for the achievement of equality for women.Footnote ¹⁰³