Asking how women are, so to speak, constituted by law around the world reveals how vastly the unknown overshadows the known. What is a constitution in gendered terms, and why should women care about this particular legal form? As a species of law, is it more or less conducive than others to addressing women's problems as women? As a species of politics, do democratic constitutions work to empower women, or do they more tend to institutionalize male power? If law is male,1 how is a constitution masculine?
For that matter, how many of the world's women and girls live under constitutions, and does that fact make a difference in their life chances? Do written constitutions work better or worse than unwritten ones, newer better than older, those within common law traditions better than in primarily civil law systems, imposed constitutions worse than when women take part in creating them? Does including the words “sex” or “gender” or “women” in a constitution materially improve women's lives under its aegis? Do countries that address women's status as such under their constitutions have fewer sex-discriminatory laws?2 Do the particular terms in which constitutions recognize women's rights—equal protection, nondiscrimination, sex/gender equality, rights of women, and those textually or interpretively—affect outcomes in court and on the ground? How much, in other words, does explicitness of entrenchment and concreteness of language count in reality? How do factors such as corruption, legal culture, literacy, and access to lawyers affect results? When women's constitutional rights are mediated by facially gender-neutral abstractions that elide inequality, such as security and privacy and due process and dignity, are the outcomes distinguishable from adjudications of the same issues under the express rubric of sex equality? What is the relative effect of constitutional regulation under terms like pay, abortion, rape, prostitution, pornography—concrete words closer to those under which the issues are lived?
Questions like these are only beginning to be systematically studied,3 leaving the comparative constitutionalism of sex mostly terra incognita. Its potential—theoretical, empirical, and practical—is immense. Because women are a global group divided among men's states and nations and cultures,4 with similar problems of inequality between the sexes arising from gender hierarchy spanning the globe in diverse forms, comparative work provides both a large canvas and a crucial control in studying the embodiment and enculturation of sex and gender across time and place. These issues are further inflected by diverse legal systems, comparison offering a vast behavioral laboratory of innovation and experimentation in solutions to women's second-class status. The shape-shifting quality of male dominance, which critically prioritizes certain practices in some cultures and takes wholly other forms elsewhere—property inheritance in Nepal, female genital mutilation in some parts of Africa, pornography in Western capitalist media-dominated cultures, for instance, while sexual abuse in families and through prostitution remain central to it everywhere—cannot obscure this fundamental dynamic once the comparative forms are lined up. Seeing the male regime as a form of global rule,5 the world is already a federal system. The ranking of some men over other men within states, and some men's states over others, is also critical to this system. Comparative analysis potentially illuminates central questions of the relation between law and society and the role of law in social change, including, for example, whether what law calls a thing matters—say, a crime or a civil rights violation, a statutory or constitutional breach, an abstract or concrete legal issue, an inequality (formal or substantive) or one of its myriad (dis)guises. In the absence of comparative analysis, such questions are debated and strategized more on the basis of instinct and experience than evidence and information.
Beverley Baines6 and Ruth Rubio-Marin's7 edited collection, The Gender of Constitutional Jurisprudence, performs the service of bringing together twelve country essays to pioneer the comparative study of women's situation under constitutions around the world. Latin America, Europe, and former British colonies are well represented. Certain omissions—none Asian other than India,8 none African other than South Africa9—are not explained. Only the South African contribution makes race central by placing women of color up front. Expectably, although there is a lot to learn here from the experts on each country,10 the quality of the essays is somewhat uneven, varying in texture as well as breadth of information, depth of analysis, and relation between the two. The contribution on Spain by coeditor Rubio-Marin stands out for conceptual sophistication and penetrating insight.11 Hilal Elver's analysis of Turkey, the only one to consider issues raised by Islamic law in any depth,12 masterfully conveys the relation between legal developments and lived-out realities, past and present, a theme often overlooked throughout in favor of focus on law-in-itself, although at times these are beautifully integrated, as in the study of Israel.13 Granted that the action in French law is largely other than constitutional, Eric Millard's contribution focuses almost exclusively, to uncertain conclusion, on the philosophical question whether France's innovative parité amendment—requiring most elections list an equal number of men and women candidates—is consistent with French universalism.14
The volume as a whole leaves the comparative task largely to the reader and touches consistently on few of the central empirical and analytic questions posed above.15 For one example, protectionism, a paradoxical tool of male power, solidifies male rule while appearing to relinquish or cushion some of it. Observations like that of Hilal Elver—that “The Court acts as protectively as possible of women if the issue fits within the traditional understanding of patriarchal Turkish society, yet acts as conservatively as possible if the issue is related to women's status as an individual and if the identity of women threatens family values” (p. 284)—ring this bell for many a legal system and could have generated productive transnational analysis. The book even allows its readers to draw their own conclusions as to what the titular “gender of constitutional jurisprudence” is. This volume is nonetheless important and groundbreaking in beginning to fill the “huge gap—a gender gap—in contemporary comparative constitutional analysis” (p. 2).
The introduction helps frame the volume's mandate “to think about constitutions in a gendered way” (p. 5). If overlooking some comparative features that stand out in the book itself, its dimensions pull together some diverse strands but often lack coherence and analytic edge. No doubt the tone of pulling punches in much of the introduction reflects a decision not to come to premature conclusions in so new a field. At least the questions that need to be addressed might have been more directly stated, and through less descriptive and more analytical dimensions that do not overlap.16 The introduction seems torn between formal legal categories and substantive social ones; those dimensions that work best combine the two.17
To take up the editors' invitation that others “continue what we have begun by de- and reconstructing our agenda themes” (p. 5), more might have been made of some simple behavioral facts, even given the small number of constitutions involved. The time in history when each constitution is enacted—United States 1789, Germany 1949, India 1950, France 1958, Spain 1978, Canada 1985, Colombia 1991, South Africa 1996—is one. Not to buy into the myth of progress, but reading the respective essays on each constitution almost suggests a temporal ranking in progressiveness of constitutional language for women, epochally if not linearly, certainly for those following 1980, when the influence of the contemporary women's movement began to register strongly. For another simple behavioral measure, nearly every essay describes women's participation in politics and as judges quantitatively, including how many are on the country's highest court, as being crucial to (if not simplistically determinative of) the efficacy of its constitution for women. Yet this question has, to my knowledge, never been systematically studied. Many countries have quotas of various kinds to guarantee women more equal political participation.18 Women in India, who insisted on formal equality, got nowhere in politics in any numbers until their views were overridden and “reservations” for women were instituted.19 The connection between demography and mission, between being biologically female and acting in women's interest, could use empirically based illumination. Comparative analysis is where to look.
Certain technical devices such as constitutional writs and standing doctrines that give women vastly different access to constitutional rights are inadequately investigated under the editors' rubric of “agency.”20 In enabling women to assert their constitutional rights, the tutela in Colombia (p. 76), the amparo (p. 258 and n. 4) and burden of proof (p. 262 and n. 23) in Spain, South Africa's “accessible forums” (p. 254), the collective actions possible in Costa Rica (p. 101), and the broad standing doctrines of India and Canada are innovations that would reward comparative study in depth. Access is what women have not had, giving these formal devices major importance. The horizontal versus vertical axis of constitutional rights—meaning whether rights function only vertically between citizen and state, as is traditional, or also horizontally between citizens, as in South Africa (p. 80) and Spain (p. 265) and, in a sense, through the concept of Drittwirkung in Germany—is another comparative dimension of immense significance. The introduction notes the issue briefly (p. 10) but without bringing the specifics from the country papers critically to bear. Given that women's subordination has been at least as critically enacted by men against women in civil society (the “horizontal” trope missing the verticality of gender hierarchy) as by states, fewer issues are more crucial. Similarly, the central substantive issue of men's violence against women is strongly analyzed in some pieces, mentioned in most, absent in others. Few follow the lead of Rubio-Marin's analysis (pp. 272–275) to discuss “sexism in the media and commercialization of the female body” under law in their countries. The same problems of sex inequality clearly arise in varying forms throughout highly diverse cultures, with distinctions among legal systems underlining the need for diversely tailored solutions. A provisional list of “best constitutional practices” for promoting equality for women as women could be constructed from such cross-cutting dimensions.
Should more evidence be needed of the utter absence of ideas in the constitutional law of the United States concerning the status and treatment of women, Reva Siegel's accurately descriptive (rather than critical) essay on the somnolent subject of U.S. constitutional doctrinal tools, appropriately bringing up the rear of the volume, amply provides it. In a book otherwise crackling with engagement, these tools—set against this backdrop of brilliant trajectories, audacious interventions, imaginative forays, determined advances, innovative and inspiring initiatives fearlessly pursued around the world by women who have their eyes on the prize of real equality—look as worn out and tired as they are. Siegel's opening observation (p. 306) that constitutions work both “to enforce and to unsettle the institutions, practices, and understandings that regulate social status of men and women” is deeply telling if applied to U.S. constitutional equality doctrine specifically. Imagine an equality approach that produces inequality as well as equality and you have the United States. The U.S. evidently still does not even recognize the distinction between formal and substantive equality21 that is so clearly understood and traced in virtually every other essay in the volume—formal equality's pitfalls clear in Australia and France, substantive equality's potential apparent in Canada and Germany—leaving the U.S. with little possibility of real forward motion on the equality front. The comparative setting of this book highlights just how stuck, how going nowhere, U.S. constitutional law on this subject is. Related and equally mired (not critically noted) is the relative failure of the United States to embrace and engage international law and legal approaches from other countries where women's rights are concerned.22 Anyone who still maintains that sex equality is somehow an American idea will learn how deluded that is from this volume's representation of (to adapt the Latin American saying, see p. 97) the road women make by walking.