by Sarah Song. Cambridge: Cambridge University Press, 2007. 212pp. Hardback. $85.00. ISBN: 9780521874878. Paperback. $29.99. ISBN: 9780521697590. eBook format. $24.00. ISBN: 9780511346323.
Reviewed by Jinee Lokaneeta, Department of Political Science, Drew University. Email: jlokanee [at] drew.edu.
The tension between ensuring rights for cultural minorities and for the individuals within these minorities has been a vexing question for theorists, and it has led to important conceptualizations in recent decades. Sarah Song’s JUSTICE, GENDER, AND THE POLITICS OF MULTICULTURALISM is an exciting intervention in the field of multiculturalism and gender justice that has longstanding implications for both political theorists and policy experts alike. Her book is a testimony to how far this debate has moved from the early discussions on the issue represented by IS MULTICULTURALISM BAD FOR WOMEN? (Okin 1999). The basic question through the decades has been whether special accommodations or rights for cultural minorities lead to a further marginalization of rights of the vulnerable sections, such as women, within these minorities. The debate initially seemed to have two polar ends: One end was represented by multiculturalists who rejected the theory of assimilation and recognized the need to accommodate rights of cultural minorities at any costs due to the past or continued discrimination against them. On the other end were feminists, such as Okin, who rejected this paradigm of group rights because it did not critique the patriarchal bases of these cultural minorities. Okin’s conceptualization was severely criticized for adopting, amongst other things, a “monolithic” version of oppressive cultural groups that needed intervention from “egalitarian” western liberal cultures (Bhabha 1999).
Song’s book is an exciting intervention precisely because she has built upon the critiques of these polarized debates very effectively, while attempting to address the concerns of the multiculturalists as well as feminist theorists. Song suggests that the cultural rights of minorities have to be accommodated precisely because of three reasons: past injustice, present discrimination and state establishment of culture. However, for Song, the case for accommodation depends on particular circumstances. More significantly, these accommodations need to be limited so that they could not come at the expense of rights of individual members within these minorities. Thus, developing and critically engaging with multicultural theorists such as Will Kymlicka, Monica Deveaux, Bhikhu Parekh and numerous others, Song’s formulation is the need for rights-respecting accommodationism. Song defines this normative approach as “committed to both the pursuit of justice for cultural minorities and the pursuit of justice for women” (p.9), where accommodation is both material and symbolic, very effectively invoking Nancy Fraser’s formulation of combining recognition and redistribution. [*92]
Song illustrates her conceptualization of the rights-respecting accommodation in three cases involving a “tension between cultural accommodation and gender equality”: “Cultural defense” cases in American criminal law (chapter 4), aboriginal sovereignty and tribal membership rules (chapter 5) and fundamentalist Mormon practice of polygamy (chapter 6)’ (pp.11-12).
One of the primary strengths of Song’s work and normative approach is an unequivocal rejection of a more essentialist notion of cultural communities, as “well integrated and well-bounded and largely self-generated entities” (p.18) that are easily identified and need to be preserved. In contrast, Song adopts a more constructivist notion of culture that takes the view of culture as a contested notion even within these communities. According to Song, culture is a “product of specific and complex historical processes,” and “internally contested, negotiated and reimagined” (pp.31-32), thus, denying an easy coherence. The constructivist view does not lead her to reject an identity-based politics but rather to acknowledge the intercultural and intra-cultural interactions that constitute these cultural communities.
Another important contribution by Song is the need for a deliberative approach to determine the solution in particular areas of tension, including those between multiculturalism and gender justice. The deliberative approach to assess accomodationism on a case-to-case basis requires an interaction at various levels: between the majority and minority cultural communities, state and minority communities explaining their own positions, and above all ensuring that the individuals within the minorities have an important place in the deliberations. To give one example of her approach from the rich empirical case studies used in the book: Song analyzes the “cultural defense” that informed the decision of a U.S. judge in a Fresno County Superior Court in PEOPLE v. MOUA (1985). In this case, a Hmong man kidnapped and forcibly had “sex” with a Hmong woman. The woman later filed kidnapping and rape charges, but the man claimed that his actions were allowed as an accepted form of marriage among Hmongs – marriage by capture. Moua was given a reduced punishment for rape and kidnapping due to a defense based on culture. Song’s close examination of the case points to the fact that this was not the only accepted form of marriage among Hmongs, while noting that in certain methods of marriage, there was an expectation that even a consenting woman had to show resistance, ostensibly making it difficult for the Hmong man to distinguish between “true” and “false” consent. Song, however, points to a hitherto less acknowledged aspect of the cultural defense cases, that they often undermine a commonality or congruence (as she puts it) between the minority and majority cultures regarding patriarchal norms. In fact, this is another significant contribution of Song’s work, the ability to move away from a perception that only minority cultures deal with patriarchal norms. Rather she notes the congruence of patriarchal norms across communities. Song points to the fact that until recently in rape cases in the US, in the absence of physical evidence of coercion, the woman had to prove that she had strongly resisted the rape. The remnants of that can still be seen in “mistake of fact” defenses, where the [*93] man can claim that he “honestly and reasonably thought” that there was consent to the sex. Thus, Song’s point here is that cultural defense cases often succeed when minority norms are similar to majority patriarchal norms. However, this does not lead her to reject cultural defenses, which she rightly argues would deprive cultural minorities from taking advantage of standard defenses that mitigate sentencing in criminal law for majorities, especially since majorities also show similar patriarchal norms. Thus, Song suggests a general reformulation of some of these defenses for both majority and minority communities that reject the patriarchal norms. For instance, in rape cases she suggests that the burden to show that the victim consented should be more on the aggressor.
Furthermore, Song points to the fact that the significance of the custom of “marriage by capture” is contested within the Hmong community itself. However, this is where her theoretical framework needs to be pushed further. If Hmongs themselves are divided on this issue – a reflection of a contested and fluid cultural community – then it raises the question of whose version of culture and tradition would be upheld. Thus, Song’s framework that she creatively develops in her other two cases as well (tribal membership and polygamy) does not adequately explain how a contested notion of culture would inform a court of law. It is not clear what would prevent a court from adopting a particular perspective that echoes patriarchal norms, and it is these dominant voices of culture that create the conflict between gender rights and cultural rights. Here Song may claim that the voices of the women of the cultural community have to be kept at the center, but this does not take into account that women can often be caught between community interests and gender justice and may not themselves speak in a coherent voice against patriarchal norms. If women accept what is seen as a patriarchal norm according to a liberal notion of justice, should that allow the state to intervene based on its conception of individual rights or go along with what the women of the community decide? These are some questions that emerge from Song’s extremely innovative framework that need to be developed further.
In all, Song’s deliberative approach takes us away from an uncritical state or non state intervention based on a universalistic (and often western liberal) notion of rights. More significantly, she identifies many of these patriarchal norms as pervasive in both minority and majority cultures that need to be collectively addressed. Her deliberative approach and the need to develop a case-by-case solution to rights-based accomodationism is a significant step forward in this debate. Song’s book is an excellent contribution to the debates on multiculturalism and gender justice and will be extremely useful for both political theorists and legal practitioners alike.
Okin, Susan Moller. 1999. IS MULTICULTURALISM BAD FOR WOMEN? Joshua Cohen, Mathew Howard and Martha C. Nussbaum (eds). Princeton: Princeton University Press. [*94]
Bhabha, Homi K. 1999. “Liberalism’s Sacred Cow.” In Susan Moller Okin, IS MULTICULTURALISM BAD FOR WOMEN? Princeton: Princeton University Press, 79-84.
PEOPLE v. MOUA, No. 315972-0 (Cal. Super. Ct. Fresno County Feb. 7, 1985).
© Copyright 2008 by the author, Jinee Lokaneeta.