by Seyla Benhabib and Judith Resnik (eds). New York: New York University Press, 2009. 576pp. Paper. $22.00. ISBN: 9780814776001.
Reviewed by John S.W. Park, Department of Asian American Studies, University of California, Santa Barbara. Email: jswpark [at] asamst.ucsb.edu.
pp.673-687
This edited collection has five interrelated sections that examine the gendered dimensions of global migration, primarily in Europe and the United States. These five sections include: situated histories of citizenship and gender; global markets and women’s work; citizenship of the family, and citizenship within the family; engendered citizenship in practice; and the possibilities for women’s citizenship in a transnational context. Each section has between two to five essays by leading scholars across a range of disciplines, including history, political science, anthropology, and law. The volume itself is over 500 pages, but given the richness of the topic and the multiple ways in which gender and immigration intersect, these things could be much longer. The broad themes brought forth by the contributors – from the protection of refugees and gender-specific forms of persecution, the right to family reunification, wage slavery now common among vulnerable transnational women, and the moral underpinnings of national sovereignty and citizenship rules – offer a rich introduction to the important problems that will occupy scholars of immigration law and policy for many years to come.
Seyla Benhabib and Judith Resnik state the purpose of this collaboration thusly: “Our intervention in this volume is to bring gender equality claims into the discussion of the four other major principles regularly invoked in this area – the free movement of persons; the need for protection of refugees; the jurisdictional authority of sovereign states over their borders; and the obligation to respect family ties, including through family reunification. Our argument is that the laws, policies, moralities, and theories of citizenship, as well as of sovereignty, jurisdiction, family life, and migration, must grapple with the way histories of discrimination and subordination based on gender affect the conceptualization and implementation of opportunities, rights, and burdens, as well as the nation-state’s powers” (p.5). Many scholars have already done this grappling, some appear in this new volume, and some of the essays here are versions of their earlier work. Still, the contributions presented together are deeply illuminating, even though they sometimes miss important new work in the field.
The essays in the first section offer some historical context, the first by Cynthia Patterson, on citizenship and gender in Athens and Rome, and the second by Linda Kerber, on the recurring problem of statelessness in American history. Both are respected historians drawing upon past scholarly work in their subfields, although with a different spin here. Most of us know that in the ancient world, women were subordinate [*674] everywhere, theorized as inferior versions of men, and otherwise abused, controlled, and disciplined. Sometimes, as Patterson points out, they are just ignored: Aristotle’s discussion of citizenship in Athens includes a few thoughts about boys and old men, but he says nothing of women. Nothing.
But, Patterson writes, “if . . . we look at the ways in which citizenship in the ancient world was larger than politics, and at the multiple ways in which membership in the community was expressed and experienced . . . [then] the character of female and/or provincial citizenship becomes more interesting” (p.49). Men who acted as citizens were polites, but women were at least astoi, “insiders,” and not xenos, “outsiders” or “foreigners.” Greek criminal law assumed women could be responsible for their actions, and Greek religious ceremonies included women in key roles. In Greek culture, women are often central, whether in Aristophane’s Lysistrata or Sophocles’ Antigone. Patterson’s examples suggest the prominent position of women in Greek culture and politics, especially in those places where one bled into the other.
So, too, with Rome: “Roman citizenship openly privileged the wealthy in a manner that might allow the elite wives or daughters, despite their lack of suffragium, to claim a status above the lower-class male citizen” (p.64). Roman women could not vote, but how can one make sense of Roman culture and history without Cornelia, Livia, or any number of famous women? Culturally, Romans sometimes centered women, or at least treated them the same as men. In his writings, Plutarch included a great deal about the exploits of women, often portraying them in heroic and virtuous ways. Again, these illustrations and sketches of life in Rome are more tantalizing than complete – if we take Patterson’s suggestion to look beyond just politics to see women in the ancient world in all of their complex roles, so much more remains to be uncovered. Patterson’s essay is like an invitation to look further.
Reading this essay made me think of Virgil and Caesar Augustus, and Aeneas and Dido. After all, the Aeneid is such an important work – it connects Greek and Roman epic poetry, Greek and Roman mythology and history, and it was written at a time when Rome moved from Republic to Empire. Virgil’s epic poem helped to legitimate the Caesars by suggesting a divine, timeless connection between the Trojan hero Aeneas and that most famous Julian family. (With propaganda like this, is it any wonder that the later Caesars, especially the crazy ones, declared themselves gods?) Like Odysseus on his way back to Ithaca, Aeneas takes a long, meandering journey, and one of the people he meets is “lovely-bodied Dido.” We meet her in Book I. Dido is the founder of a great new Mediterranean city (it’s Carthage), she is an imposing commander of men (“A woman leads”), and she immediately shows mercy toward Aeneas and his men, tossed as they are like so many refugees from the sea, not to mention a ten-year war.
Having fled her own country, when her murderous brother killed her beloved husband, Dido is both great and generous: “Young men, you are welcome in our halls. My destiny, like yours, has willed that I, a veteran of hardships, halt at last in this country. [*675] Not ignorant of trials, I now can learn to help the miserable.” But by the beginning of Book IV, Dido confesses that she has fallen madly in love with Aeneas, they even “fondle” through a whole winter, and then he says he has to split. He blames the gods, fate – he says he has another destiny, and he’s, like, hey, honey, thanks, but it’s not like we were married. By the end of Book IV, Dido is so utterly distraught that she uses a sword to kill herself, as Aeneas moves on, conquers, and does not mention Dido again.
As sad as this is, this ancient story offers a segue into Linda Kerber’s essay on statelessness in American history, because she begins with an interesting question: exactly what would be the legal status of the son of Captain Pinkerton and Cho-Cho-San, the two main characters of Puccini’s Madame Butterfly? Their story is very similar to Aeneas and Dido’s, except for the kid. “What passport would the child of Madame Butterfly and Captain Pinkerton carry?” (p.78). It is Puccini’s opera, but he got the story from a play he saw in London, and that playwright got the idea from an American writer in Philadelphia, who got his idea from a fictionalized French memoir. The basic plot is the same: a dashing Westerner has an affair with an Asian woman, she falls madly in love, he leaves but promises to come back for her, he does come back but not for her, and with his wife (Kate, a proper white woman). And so the young Asian woman plans to kill herself with her father’s sword. Kate offers to raise the kid. To spare the boy from seeing her death, Butterfly gives him an American flag and a doll, and she blindfolds him just to make sure.
What about the boy? Kerber notes: “In the United States, nonmarital children born overseas to American citizen fathers are not citizens until the father legitimizes them. Unrecognized by either nation, Butterfly’s baby is effectively stateless” (p.79). Unlike Aeneas, Pinkerton admits he has been a jerk, and so his son might well be in this odd legal limbo. But even if he were not a jerk, even if he were willing to acknowledge his child and raise him with Kate, things might not go well after all.
We see this possibility when Kerber tells the story of Tuan Ahn Nguyen, born in 1969, whose American father brought him to Houston when his Vietnamese mother abandoned him. Nguyen was rendered deportable when he was convicted of a crime, even though his father argued that he should have been able to transmit citizenship to him in the same way that a woman could have. All children born to American citizen women are presumptively citizens, wherever they are born, but American citizen fathers cannot “transmit” citizenship in that way. And the rule will remain that way for some time: “In 2001, a five-to-four U.S. Supreme Court majority denied Nguyen’s father’s claim that he should have been able to transmit birthright citizenship to his child on the same terms that an American citizen woman can” (p.80).
Nguyen lost, Kerber notes, because for the most part, American courts were reluctant to impose a rule that might extend American citizenship to the illegitimate children of American fathers. There have been (and still are) a lot of Pinkertons out there. The federal courts were ultimately unwilling to [*676] intervene against policies shaped at the Department of Defense, policies that really leave the women and children to fend for themselves. And so, “Even those men representing the United States abroad have the Court’s permission to father children out of wedlock and abandon them” (p.82).
Kerber also notes that many Americans do not want illegal immigrants to “transmit” American citizenship to their children so easily either: “In the United States now, perhaps the most chilling signal that reconceptualization is possible is the presence of a vigorous political attack on the Fourteenth Amendment’s guarantee of birthright citizenship, an attack that destabilizes one of the strongest founding principles of American identity and makes highly likely the increase of statelessness” (p.86). In her other works, Professor Kerber has discussed at length the status of
slaves, Native Americans, women who married foreigners, American nationals, immigrants, refugees, deserters, deportable aliens, Hannah Arendt, and children, all of whom have felt various conditions of statelessness. As she shows here in this essay and elsewhere, statelessness is a condition often befalling people no one wants. It is a recurring problem.
Kerber’s essay ends with Pearl Buck’s version of the Butterfly story. In Buck’s novel, The Hidden Flower, a Japanese woman falls in love with an American man, gets pregnant, and goes to the United States with him to get married, only to have the American dump her. (He blames his racist, Virginian family.) Josui will not kill herself, but she will return home to marry a Japanese suitor, who demands that she give up the illegitimate child. So she has the kid in Los Angeles, and to her amazement, a kind Jewish woman physician who lost everything in the Holocaust adopts her baby. Kerber loves this version: “The exemplars of the ethics of a cosmopolitan world are these two women – the Butterfly who finds a way to ensure her child’s future without having to kill herself; the survivor of the Holocaust who stretches her hands across the Pacific, across boundaries of language, race, and nation. Together they will make a world in which state boundaries are less important than ethics and love” (p.110).
I prefer David Henry Hwang’s version, M. Butterfly, the one where a white guy falls in love with a Chinese opera singer, they have a torrid affair but no children because the singer’s actually a man, a fact that the white guy does not discover for over two decades. Gallimard leaves his own wife for his Song. But when Gallimard finds that his “perfect woman” was actually a guy all along, and a spy no less, an agent who has been using him, he is so distraught that he kills himself. Song casually smokes a cigarette when Gallimard offs himself. Of all the Dido/Aeneas, Pinkerton/Butterfly variations, I rather like this version the best.
The second section of this volume has two essays, by Linda Bosniak and by Aiwha Ong, both covering the global comodification and transnationalization of “women’s work,” primarily in domestic labor. Bosniak draws heavily from scholarly work in political theory and in sociology, first to establish the (ancient) link between “freedom,” understood in a classic sense to mean [*677] “freedom from the necessities of life,” and access to labor, including reproductive labor. Bosniak’s account reminded me of Hannah Arendt’s classic work, THE HUMAN CONDITION, because Arendt examined in amazing depth that relationship between “freedom in the public sphere” and the grinding, mundane necessities of the “private household.” Mary Romero, Evelyn Nakano Glenn, Arlie Hochschild, Barbara Ehrenreich, Rhacel Parrenas, Grace Chang, and Pierrette Hondagneu-Sotelo are some of the fine contemporary scholars who have written about the link between women of color and affluent white households that are increasingly common in our own time. Another edited collection, by Denise Segura and Patricia Zavella, offers further insights into this private/public divide from the perspective of the U.S.-Mexico borderlands; several scholars there argue that a great deal of political effort in the United States is rooted in an obsessive desire to control Latino women and Latino households.
Bosniak is not the first to observe that globalization has added a new twist on domesticity: “What does it mean that, whatever equal citizenship some women in wealthy countries may achieve through market-sphere work, it is often facilitated by the employment of people from poorer countries who themselves lack status citizenship in the country in which they labor?” (p.129). More women are working professionals, in careers that make them more politically and materially equal to men, thus forming the bases for their social and economic citizenship, and yet more households in affluent countries rely on domestic laborers from other places to do that reproductive work so necessary for such freedom. The most intimate work – cleaning the house and taking care of the kids – is done by women, and so “[it] frees one class of women from the performance of some of this work while at the same time ensuring that the work remains women’s work” (p.133). The relationship is fraught with structural inequality: “Some women’s pursuit of citizenship – whether conceived of as equal citizenship, economic citizenship, or democratic citizenship – by way of work in the developed world is facilitated, in part, by the employment of women from mostly third-world countries who themselves are in a condition of ‘citizenshiplessness’” (p.137).
The theme carries forward in Aiwha Ong’s essay, which is a reprint of a chapter in her excellent book, NEOLIBERALISM AS EXCEPTION (2006). In that book, Ong argued, among other things, that neoliberal states care more about protecting and attracting people who have skills and wealth, whoever they are, rather than people who do not have either, even their own members and citizens. Against non-citizens who have low skills and no wealth, neoliberal states have been absolutely vicious. That viciousness is what is presented in this volume: “The frequency and ferocity of abuses against foreign maids index a brewing human rights crisis over the emergence of neo-slavery in Southeast Asia” (p.158). In the poorer, labor-exporting countries where these women come from, even “advocacy” organizations tend to be unhelpful: “Nongovernmental agencies, or NGOs, play a crucial role in training and indoctrinating would-be migrants, focusing in particular on self-managing techniques that instill proper attitude and [*678] conduct abroad. Feminist NGOs offer lessons linking overseas employment with Catholic feminine values” (p.162). Always searching for hard currency, sending countries coordinate the migration of their citizens to places where economic opportunity and exploitation often go together.
Ong notes that foreign domestic workers are regarded as unprotected, expendable assets in the countries where they work. “In the aftermath of the Asian financial crisis in 1997-98, close to nine hundred thousand migrant workers, the majority of them female, were expelled from host nations. In Malaysia, campaigns such as ‘Operation Get Out’ pushed migrants to nearby Indonesian islands that act as holding stations” (p.167). Ong also suggests cultural dimensions that are specific to that part of the world: “[Among] ethnic Chinese populations, there is a historical practice of servitude that constructs the unattached, mobile woman as an unprotected category” (p.169). And again, although advocacy groups within the affluent countries have attempted to help these women, through public shaming of abusers and complacent government actors, they have generally avoided formal legal channels to discipline citizens and their states: “In Southeast Asia, NGOs are demanding moral guarantees of biological welfare, not rights of citizenship for migrant workers as members of a global humanity” (p.179).
Ong’s chapter is deeply disturbing, but again, other scholars in the field have examined these issues at length, and in multiple dimensions. For example, Rhacel Parrenas’ work is extremely helpful, as she examines the conditions of migrant workers in Europe, Asia, and North America, as well as the consequences of their absence for their own families, in their own countries. Filipino women work in a dizzying range of occupations around the world, from maids and nannies to nurses and entertainment. But how will the children of “overseas Filipino workers” raise themselves, when mother, father, or both parents are working abroad? This fracturing of households is one of the most wrenching themes in this age of globalization.
Two essays that further examine the impact of immigration rules on families form the third section of the volume. In Jacqueline Bhabha’s essay, she discusses families torn apart by an ever stricter set of rules mandating removal and deportation of illegal aliens and lawful permanent residents. Before 1996, persons facing “deportation” had important avenues for relief, especially when they could show that their deportation posed an unusual hardship to an American citizen or a lawful permanent resident, which was often a child. Now, that relief is gone, and it exposes an increasing population of American citizens to an uneasy future: “Approximately three million U.S.-citizen children have at least one parent who is in the United States without a regular immigration status; tens of thousands each year live through the deportation of a parent. What does citizenship amount to for these children?” (p.190). Indeed, because states remove more persons than ever before, the significance of citizenship itself seems to be changing: “[Arguably] the most significant citizen-specific entitlement today is the guarantee of nondeportability, irrespective of criminal offenses” (p.192). [*679]
Yet citizen children are typically powerless: “A citizen child cannot generally use the fact of citizenship to block the removal of parents facing deportation or to secure entry for a parent abroad” (p.194). Also, like Linda Kerber, Bhabha worries that the attack on birthright citizenship further erodes the position of American citizen children more broadly. When leading scholars and jurists like Peter Schuck and Richard Posner oppose birthright citizenship, Bhabha warns, “the attack on birthright citizenship is, first and foremost, an attack on the existing rights of citizen children” (p.199). Rather, Schuck and Posner might reply that the attack is mostly directed at the parents, many of whom might use their American-born children to gain rights or status that they do not deserve.
This certainly seems to have been the worry in Ireland, which did away with its birthright citizenship rule when so many immigrants were taking advantage of it: “The number of nonnationals claiming residency on the basis of [Irish-born children] increased from approximately fifteen hundred in 1999 to over six hundred thousand in 2001” (p.213). Bhabha continues: “On June 11, 2004, a public referendum on the constitutional right to citizenship was held; 79.17 percent of valid votes were cast in favor of removing the automatic constitutional right to birthright citizenship. An amendment to the Constitution followed quickly, depriving children born in Ireland, both of whose parents were nonnationals, of the constitutional right to citizenship” (p.215). Bhabha points out that in this debate, the Irish courts complained that children born in Ireland to non-citizens were not making a “deliberate decision” to choose Irish citizenship; but “which minor child, one wonders, are in a position to make deliberate decisions about the country they reside in or call home?” (p.196). Yet even in the United States and Canada, where governments have not (yet) gone this far, the impact of deportation on citizen children is clearly becoming just one, often not very important, consideration when liberal states move against removable aliens, such that “citizenship for a child very easily and quickly becomes a denuded status” (p.218).
A great many children now leave with their deported parents, and Bhabha suggests that this trend is harmful overall for traditional, politically robust conceptions of citizenship. “What sort of juror or voter with a contribution to make to his or her peers is one who has been forced to live outside the community during the premajority period? How is such a person to engage with the concerns of the polity in a meaningful and contributory way?” (p.219).
Sarah van Walsum’s essay looks at family reunification from the other direction, in the Netherlands, where state law required parents, when they wished to reunite with their children, to prove an “an effective family bond” to the children they had left behind in their home countries. “Dutch family reunification policies required that parents provide written proof that they had been effectively involved in the upbringing of their children during the entire period of separation, and that they had also provided full financial support during that period” (p.231). Van Walsum explains that originally, the rule was designed to protect foreign fathers [*680] from taking children away from third world mothers, but by the 1990s, the rule served more to separate families rather than reunite them.
After much litigation, the European Court of Human Rights declared that this standard from the Netherlands violated Article 8 of the European Convention, which declares that “everyone has the right to respect for his private and family life, his home and his correspondence.” The Court said in 2005 that “‘parents who leave children behind while they settle abroad cannot be assumed to have irrevocably decided that those children are to remain in the country of origin permanently and to have abandoned any idea of a future family reunion’” (p.243). The Dutch government resisted this decision at first, but by 2006, it issued new rules giving up the standard, thus providing a happy ending of sorts to families that had been separated. Still, van Walsum cautions, “there is nothing inevitable or irreversible about the workings of European human rights law” (p.246). As one of the most dynamic, evolving arenas of a new kind of federalism, European human rights law is still in flux, and so too the rights of immigrant and mixed-status families in Europe.
In the fourth section on engendered citizenship in practice, the law in transition is the over-riding theme. The three separate essays, by Valentine Moghadam, Audrey Macklin, and David Jacobson, examine the possibility that women’s rights and women’s equality are emergent global norms, even as international migrations bring diversity and otherness to more corners of the world. Moghadam’s essay focuses on the Muslim world, and two countries in particular: “The Islamic Republic of Iran exemplifies the case of an active movement for women’s citizenship in the face of a strong state and – until recently – weak global links. The case of the Kingdom of Morocco shows how coalition building and possibilities for a state-feminist alliance can result in law reform favorable to women” (p.257).
Moghadam details the development of transnational women’s rights organizations in the region, including Women Living Under Muslim Laws (WLUML), Women’s Learning Partnership for Rights, Development, and Peace (WLP), Sisterhood is Global Institute (SIGI), Women’s Learning Partnership (WLP). These non-governmental, civil society institutions were critical in helping women activists form alliances across several different countries. And yet, specific country conditions were critical: “Feminists [in Iran] framed their grievances and demands in Islamic terms and drew from the ‘cultural stock’ to press for women’s rights and equality. But they also used secular language and pointed to international conventions and standards, thus challenging the dominant political and ideological framework” (p.265). Women themselves reinterpreted the basis for Sharia law, “to emphasize the egalitarian and emancipator spirit of the Quran” (p.264). When women’s rights activists staged public protests in 2005 and 2006, they were attacked by the police, but by then, the activists were so well organized, so well connected to allies in the Muslim world and to expatriate feminists that they continued to press for change throughout Iran. Moghadam’s essay was, of course, written before the most recent presidential election in Iran, but I could [*681] not help but think of how deeply relevant her work is right now – it explains a great deal about how an Iranian theocracy cannot reassert control in the face of mass protests that won’t go away, protest after protest, all of which include thousands and thousands of very brave women.
Moghadam notes that things do not have to be like this. Moroccan family law was extremely conservative and rigid, and Moroccan clerics often insisted that its tenets were beyond negotiation. Women’s rights activists kept pressing and they won several basic reforms in 1993. In 1998, they helped elect a socialist prime minister, and by 2002, thirty-five women held seats in the Moroccan Parliament. In time, King Mohammad VI agreed to form a commission to study Moroccan family law in its entirety, and this included several women’s rights organizations that had been active in lobbying all along for basic reforms to the mudawana. “By October 2003, in his capacity as Commander of the Faithful, the king announced a new family code – which he asserted was consistent with the spirit of the Sharia – and then sent it to Parliament” (p.268). Men and women were now considered equals within a marriage; both had a right to seek a divorce; men had to acquire the consent of their wives before taking more wives; and a minimum legal age for marriage was set at eighteen years. Moghadam concludes that “[the] Moroccan case is a striking example of how women’s rights advocates can build coalitions to generate social dialogues, have an impact on key policy debates, and help effect legal reform and public policy changes” (p.269). She concedes that the activists did have “sympathetic and supportive political leadership,” but her story suggests that they helped to shape this leadership over many, many years.
In Audrey Macklin’s essay, the protagonists are “encultured women” who participated directly in two highly publicized political campaigns in Canada, the first involving female genital mutilation (FGM) and the second in the push for legal recognition of Islamic faith-based arbitration in Canadian family law. FGM was banned in Canada by 1997. “Surprisingly,” Macklin writes, “the political pressure to criminalize FGM in Canada emanated from the encultured women who inserted and asserted themselves directly in the legislative process. This contrasts notably with the sequence of events in other jurisdictions where, according to critics, the leaders of campaigns tended to be white activists, while women from affected communities were selectively recruited to perform the role of exoticized victim” (p.280). In other words, women’s rights activists within Canada’s immigrant community used state policies to discipline members of their own immigrant communities.
The same result came about when Canada considered allowing Islamic, faith-based organizations to arbitrate family disputes that would then become binding under Canadian law. To see about this possibility, the Ontario government appointed a former attorney-general, Marion Boyd, to study the problem. Boyd was sympathetic, but many were not, and certainly not the Canadian Council of Muslim Women. The Council opposed arbitration by looking at the structural forces that would disadvantage women, not by stating that Islamic culture was or is [*682] inherently bad for women. The Council and other organizations pointed out that in these insular communities, where many women were derivative beneficiaries whose legal status and livelihood depended so heavily on their husbands and fathers, Islamic, faith-based family arbitration would fail to protect the women. “A central issue for feminists in both the FGM and the Islamic arbitration debates concerned the way secular law could protect encultured women from the risk of oppressive intracommunal practices” (p.295). In Canada of all places, the immigrants were rejecting legally institutionalized multiculturalism.
The problems of multiculturalism constitute the primary topic for David Jacobson, who argues, in essence, that where women’s rights and cultural diversity collide, women’s rights should win, without liberal guilt or other forms of equivocation. “The rights and status of women prove to be remarkable prisms in part because the multicultural project, and the largely unproblematic depiction of transnationalism and postnationalism, splinters on women’s issues” (p.307). “Put another way, viewing immigration and immigrant communities through the lens of gender reveals the institutional limits of multiculturalism and transnationalism” (p.309).
In this contest, Jacobson makes clear where he stands: recounting stories where immigrant defendants appealed to their “culture” as a mitigating factor for a range of criminal offenses, including cases involving killing, kidnapping, and sexual assault, Jacobson is appalled that many courts in the United States have been receptive to these “cultural defenses.” Jacobson would prefer courts to uphold principles of self-possession and of proprietary individualism when women are subjected to oppressive practices. Indeed, women and children have often been the victims, as in the case of the Iraqi guy who “gave away” his thirteen-year-old daughter in Nebraska to a thirty-four year-old man, a fellow Iraqi. The men claimed that this was acceptable culturally in Iraq, but the trial court and the Court of Appeals did not buy it. The “husband” was given a four to six year sentence.
Jacobson worries that a kind of cultural relativism and perhaps a sense of shame over imperialism among feminists and other legal theorists in the West prevents them from moving forcefully to stamp out non-Western cultural practices, even when they harm women. But, he says, “[these] arguments severely underplay, in effect, the qualitative jump of institutionalized discrimination against women in such patriarchal circumstances compared to, say, the United States or Britain more generally – and do the women in such circumstances no favors” (p.322). Maybe we should just stamp away: “As in the ending of racial apartheid, ‘extinguishing’ gender apartheid, albeit a cultural practice, should not be a source of concern” (p.323). He perhaps overstates things here: for one, as we saw in Macklin’s essay, the job of the liberal state might just be to allow the progressives within an immigrant community to shape the debates about what are or are not acceptable cultural practices; and secondly, many, many feminist scholars, including Leti Volpp, Dorinne Coleman, Alison Renteln, and Sarah Song, have examined these issues at length, and they have often reached the same conclusions, though with more subtlety. [*683] (I will say more about Song’s account in particular later.)
The final section of this volume has five essays, all concerning how the nation-state might be “reconfigured” in light of women’s citizenship in a transnational context. The first essay by Catherine Dauvergne builds on her work in MAKING PEOPLE ILLEGAL (2008): “[this essay] takes up the question of globalization’s effects on citizenship and examines it in light of two propositions. The first is that in response to the pressures of globalization, control over membership is being transformed into the last, and best defended, bastion of national sovereignty. The second proposition is that for Western liberal states with well-developed immigration programs, immigration law and citizenship law have long had a dichotomous relationship in which the liberal discourses of equality and inclusion are left to citizenship law while immigration law performs the dirty work of inequality and exclusion” (p.333).
As Dauvergne also said in MAKING PEOPLE ILLEGAL, “We are in the midst of a worldwide global crack-down on illegal immigration” (p.341). This has had tremendous, negative consequences for family reunification, refugee admissions, and entire immigrant communities facing deportation – all these trends have gendered dimensions that harm women and families. Curiously, this crackdown has occurred when naturalization rules have become more liberal, and many more people have successfully naturalized, especially within the United States. “Citizenship laws in many sought-after immigration destinations now appear more liberal, but the immigration laws that are citizenship’s gatekeepers are not” (p.350). Immigrant women’s status is subject to “an intricately gendered immigration net,” and insofar as that net has been woven by an economic logic that favors the rich and skilled while punishing the poor, women have cause to worry, if only because “economic logic has never fully recognized women’s productivity” (p.350).
The special vulnerability of women is the topic of Talia Inlender’s essay about gender-based claims in refugee law. She draws an important distinction between “gender-specific persecution,” where “the gender of the victim may dictate the manner of persecution but is not necessarily the reason for the persecutory act itself,” and gender-based persecution, “the reason for the persecution itself is the victim’s gender” (p.359). “What distinguishes gender-based persecution is not the form of the persecution but its animating purpose” (p.359). Most of the essay surveys current arguments, pro and con, of adding gender as a possible sixth category within the established refugee convention, which now includes race, nationality, religious beliefs, political opinion, and membership in a social group.
Inlender notes that many women face intense persecution because they are women, and often because they are working for women’s liberation or women’s rights, or because they are subject to cultural practices specifically meant for women, including female genital mutilation. When the form of persecution cannot be understood aside from gender, when the very animus behind the persecution was based on [*684] gender, a woman claiming refugee status is forced to subsume or modify her story to fit one of the existing five categories. In other words, she can not be fully truthful about why she was persecuted, and a sixth category might remedy this precise problem. In addition, because so many instances of gender-based persecution involve sexual violence, “the addition of a separate, gender ground may affirm women’s collective identity and be healing in a way that subsuming their stories into male-dominated categories may not” (p.371). Politically and morally, a separate, sixth ground would allow women “to accurately account their persecution as stories of gender subordination” (p.371).
In her essay on intercultural political identity, Angelica Means addresses some of the concerns raised by Jacobson in the last section, to argue for more cosmopolitan outcomes when immigrants make demands for certain forms of cultural recognition. She fastens to one important branch of government where these outcomes are possible: “Courts need to develop cultural rights – to ‘frame’ an antidiscrimination norm that includes the individual’s right to be free from cultural discrimination” (p.382). Means suggests that existing groups have no principled right to protect their culture against the culture of outsiders, thus challenging the arguments made many prominent political theorists, including Michael Walzer. This communitarian idea – that people have a political right to defend themselves and their culture from outsiders – amounts to a form of cultural discrimination that is as offensive to liberal theory as the establishment of religion, or unconstitutional infringements of religious liberty.
Following other scholars, Means proposes a “jurisgenerative politics,” where constitutional courts are places where debates about “our” core values occur in the presence of outsiders. She notes that in the European Court of Human Rights, justices have upheld the right of women to “author” and make claims about their own culture, in ways that enhance both their understandings of the host society and the host society’s understandings of them. “If we citizens of strong democracies continue to take our own democratization process seriously, we will, as an inchoate feature of our own recursive identity, recognize the rights of new members” (p.396). Rather than just react to the new challenges posed by immigrants, courts can assess disputes about culture and cultural identity more self-consciously and thus translate conflicting norms to reach principled resolutions over culturally-laden disputes.
Means recognizes the anxieties inherent in such processes, and she perhaps gives too much credit to the courts, many of whom are prone to reactionary, unreflective decisions (at least in the United States). But this idea that liberal societies should change and accommodate the newcomers, instead of simply expecting the newcomers to accommodate and assimilate into the existing norms, is an interesting answer to the arguments made by David Jacobson. Rather than seeing one’s society as static or culturally “better” than another, a discursive politics invites others to join the conversation, to help re-shape law and culture, and to [*685] re-examine deeply held moral and cultural values.
Means relies heavily on Jurgen Habermas’ work, but her ideas reminded me of Bruce Ackerman’s earlier work, as well as Sarah Song’s recent book, JUSTICE, GENDER, AND THE POLITICS OF MULTICULTURALISM (2007). Like Means, Song proposes that liberal democracies should not steamroll the newcomers, but that they should structure principled conversations about cultural differences arising from migration and from other forms of diversity, and through a wider set of political institutions beyond just the courts. Song’s ideas are likely to appeal to scholars like Jacobson, if only because these scholars would be confident that in the end, liberal principles will win in open, fair debates about what the newcomers and the insiders should do. Song’s nuanced approach has great strengths, and so it is too bad that Song’s book was not cited anywhere in this volume.
Patrizia Nanz’s essay on citizenship and identity within the European Union is instructive because she suggests that more fluid, cosmopolitan political and legal identities already exist in places where it did not seem possible. Thus far, European citizenship has not been defined culturally: “Union citizenship creates an explicitly political status and it does so without relying on a constitutional European demos. It offers to the citizens of the member states a new and additional ‘we,’ which creates a bond among individuals who accept that they are and remain alien to each other” (p.427). Nanz’s ethnographic work suggests that this shared sense of otherness has had the curious effect of helping Europeans feel more empathetic to one another – now that a lot more people know what it is like to be an outsider, having lived in a part of Europe that is not their home country, they become at once more attached to their home culture and more tolerant of others who are not like them. Compared to the last century, when nationalist projects dominated European politics and tore the world apart, the political moves toward a common European identity is indeed truly remarkable.
Nanz further suggests that this post-national citizenship might help non-Europeans as well. In the ZHU AND CHEN case in 2004, where a Chinese woman, Ms. Chen, went to Ireland to take advantage of that country’s birthright citizenship rule for her daughter, Zhu, the European Court of Justice eventually upheld their right to reside in Europe, and Nanz says that “the case demonstrates how women may be able to use transnational forms of citizenship and entitlements to increase their mobility and gain rights” (p.428) But there was a push-back, as we saw in Jacqueline Bhabha’s essay, and certainly, cases like ZHU AND CHEN angered so many Irish citizens that they voted to end birthright citizenship for non-nationals in Ireland that same year.
This push and pull of political forces, occurring at many different levels now, is the topic of Vicki Jackson’s final essay on citizenships, federalisms, and gender. The main argument is that although nation-states will be around for the foreseeable future, transnational and international norms should be institutionalized to protect people from exercises of national sovereignty: “The exclusionary edge of citizenship should [*686] also be mitigated and constrained by human rights norms” (p.448). The first part of this argument is important for Jackson: “Treating citizenship as involving only individual choices – like what credit card to have or what clubs to join – overlooks the relational aspects of citizenship, in linking co-citizens to respect for one another’s status, rights, and well-being within a particular community” (p.448). Theoretically and politically, we seem unprepared for a world without states.
Still, Jackson embraces multi-layered federalisms where sovereignty is separated and subject to those classic checks and balances. “Federal systems provide multiple (seemingly redundant) avenues for the pursuit of change through government – laws, policies, and in some cases judicial decisions” (p.453). Federal systems allow for experimentation, and though they sometimes seem mired in endless conflict and even paralysis, they provide multiple opportunities for political activists, especially women’s rights activists, to engage in politics. “Given wide divergences in particular normative aspirations, social practices, and effective enforcement of legal norms, the interests of women in overcoming subordination may be best served by an overlapping multiplicity of sources of law, affiliations of identity, and legal fora for rights enforcement, which layered forms of governmental jurisdiction can provide” (p.463).
During a time when the United States has often seemed as hostile to international law and human rights norms as, say, Iran, Jackson’s arguments for federalism are very welcome. Her contribution is yet another example of the high equality of all the essays in this entire volume. The contributors of the volume do seem to miss things here and there, but overall, this edited collection is very stimulating and useful. The world is shrinking in multiple directions – more immigrants are coming into advanced industrialized countries than ever before, across a wider array of positions fragmented by class and status. Much of this has been terrible for poorer women, and yet there is cause for hope, as we also see evidence of how ideas about women’s equality and women’s rights now also reach everywhere around the world. The outcomes for women are not always what we expect: in places like Morocco, women are being recognized as persons with rights; and in places like the United States, deportation effectively eviscerates the rights of American citizens to be with their loved ones, and it tears entire families apart. Indeed, if the laws governing removal remain unchanged, the United States will deport more mothers of its own citizens than any other nation.
That this volume brings together the unexpected, and also clarifies what is at stake overall in debates about migration, equality, and especially gender, makes this book a valuable resource for a wide range of scholars. This volume might also be invaluable for progressives everywhere, especially women’s rights activists, who could share its rich set of ideas through their own transnational networks, as well as in their own countries and local communities. As they push collectively to make globalization and global migrations more humane, fair, and just, this kind of scholarly work is the right kind of intervention. [*687]
REFERENCES:
Coleman, Doriane L. 1996. “Individualizing Justice through Multiculturalism: The Liberals’ Dilemma.” COLUMBIA LAW REVIEW 96 (June): 1093–167.
Ehrenreich, Barbara, and Arlie Russell Hochschild (eds). 2003. GLOBAL WOMAN: NANNIES, MAIDS, AND SEX WORKERS IN THE NEW ECONOMY. New York: Metropolitan Books.
Hondagneu-Sotelo, Pierrette (ed). 2003. GENDER AND U.S. IMMIGRATION: CONTEMPORARY TRENDS. Berkeley: University of California Press.
Parrenas, Rhacel. 2005. CHILDREN OF GLOBAL MIGRATION: TRANSNATIONAL FAMILIES AND GENDERED WOES. Stanford: Stanford University Press.
Parrenas, Rhacel. 2008. THE FORCE OF DOMESTICITY: FILIPINA MIGRANTS AND GLOBALIZATION. New York: New York University Press.
Renteln, Alison D. 2005. THE CULTURAL DEFENSE. New York: Oxford University Press.
Romero, Mary. 1992, 2002. MAID IN THE USA. New York: Routledge.
Segura, Denise A., and Patricia Zavella (eds). 2007. WOMEN AND MIGRATION IN THE U.S.-MEXICO BORDERLANDS: A READER. Durham: Duke University Press.
Song, Sarah. 2007. JUSTICE, GENDER, AND THE POLITICS OF MULTICULTURALISM. New York: Cambridge University Press.
Volpp, Leti. 1994. “(Mis)identifying Culture: Asian Women and the ‘Cultural Defense.”’ HARVARD WOMEN’S LAW JOURNAL 17 (Spring): 57–97.
Volpp, Leti. 2001. “Feminism versus Multiculturalism.” COLUMBIA LAW REVIEW 101 (June): 1181–218.
© Copyright 2009 by the author, John S.W. Park.
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