From formal to real rights: Minority women’s protection against discrimination in a culturally complex and transnational Norwegian context (completed)
There is a growing tendency within the different legal systems in western countries that cases pertaining to the recognition of Muslim family law, arise.
Examples are how to treat questions concerning divorce rights, child custody, and the financial partition between the spouses upon the dissolution of marriage, where there is a potential discrepancy between Muslim family law and the national law in question.
About the project
The project focuses on minority women’s right to non-discrimination, in the light of their position in the family and marriage, and with a view to a cultural complex, socially unequal and transnational context of law.
A key question is how and to what degree Norwegian authorities are fulfilling their obligations as a state party to CEDAW, in their efforts to accommodate these women’s special needs and how conflicting claims of recognition of cultural and religious diversity on the one hand and equality and integration on the other are being solved within the Norwegian legal system.
The project applies a grounded and human rights based methodology that draws upon both legal material and empirical data. The focus is shifted from abstract principles of human rights to the actual social settings where human rights are played out, in this case with the backdrop of how Muslim immigrant women living in Norway are influenced by different sets of legal cultures.
- Lene Løvdal, IWL, UiO: How Western courts handle normative pluralism: The Mahr in Scandinavian, French and British courts
- Rukshana Asharaf IWL, UiO: Women’s inheritance rights among Norwegian-Pakistanis. The relationship between Norwegian, Pakistani and Islamic law in theory and practice.
- Tina Nordstrøm, IWL, UiO: Minority women’s right to legal information. The case of Free Legal Advice for Women’s (JURK’s) dissemination of legal information program.
Equality, freedom, multiculturalism and legal pluralism
The overall theme of the research project is the relationship between minority women’s formal and real rights under the unitarian Norwegian legal system. With the exception of an exemption for inner religious affairs in religious communities, treat all citizens alike regardless of gender, race, ethnicity and religion. The researchers in this project will explore the interplay between the unitarian national legal system and minority women’s multiple identities as Norwegian citizens and members of different ethnic and religious groups often living transnational family lives.
While formally regulated by Norwegian law, transnational patterns of marriage, work and religion are often reflected in arrangements that facilitate relationships across national boundries. Within this mobile scenario Norwegian state law is in practice not the sole regulator of human behaviour. Norms are also generated through transnational family determinations or religious religious networks and organisation. In practice state-law interacts with a wide range of other norms ranging from informal religious norms to the formal state law in the country of origin. Accelerating mobility of persons through marriage and work imply that people often operate in multi-sited situations and as such have to deal increasingly complex legal situations.
A situation where several normative orders operate in a social field is in anthropology of law termed legal pluralism. The situation of legal pluralism has given raise to claims and counterclaims regarding the recognition of informal norms and institutions of conflict management. While the Scandinavian countries have maintained a national unity model countries like the UK and Canada has gone further in accommodating the normative and institutional pluralism that multiculturalism is giving raise to. In the present situation the rights of minority women has become a site of contestation between the individual right to freedom, equality and non-discrimination and ethnic and religious group rights.
Difference, sameness and real equality – the CEDAW
The CEDAW committee, the international body that monitors state parties fulfilment of their obligations under the UN Convention on the Elimination of all Forms of Discrimination against Women, is increasing its pressure on European state parties to respect, protect and fulfil the equal rights of immigrant and refugee women. The committee has simultaneously expressed a concern as to how state parties accommodate the intersection of gender, class, race, ethnicity and religion. Dealing with Turkey’s annual report the committee asked the Turkish government whether the prohibition against the headscarf in public schools had been to the effect that girls were leaving school. The same approach was taken by the Child Rights Committee when examining France’s report after the use of headscarf in public schools was prohibited by law.
While in principle prohibiting all forms of discrimination against women and obliging state parties “to eliminate practices and beliefs that are based on hierarchic gender stereotypes” with all appropriate measures – the committee is simultaneously expressing concern as to the consequences of prohibitions against such practices and beliefs.
A central research theme is thus the relationship between women’s right to protection against discrimination on the one hand and the need to take social or cultural difference into account to achieve real equality on the other. This is partly an empirical and partly a normative question. Yet principles and consequences are, in the practice of human rights treaty bodies, interconnected.
This complex socio-legal terrain gives raise to research questions at international, national and local level.
Transnational relations give raise to increasingly complicated legal issues. In international private law the problem is seen as a question of what law applies when people live in several countries. Different legal alternatives ordre public – party autonomy – domicile – discretion of the judge. An overall question that will be analysed in this research project is how the choice of law rules correspond to complex transnational life situations and women’s right to equality in marriage and family matters.
At the international level researchers in this project will look closer into how the CEDAW committee in its general recommendations and consideration of state reports deal with the contentious relationship between principles and consequences, particularly with a view to minority, immigrant and refugee women. How does the CEDAW committee substantiate the general concern that state parties accommodate the intersection of gender, class, race, ethnicity and religion? What are the implication of this concern for its definition of discrimination and equality? Contested issues are whether the non-discrimination principle in CEDAW require that Norwegian classes for immigrants are mixed or that public swimming halls not are allowed to have separate opening hours for women.
At the national level the researchers in this project will explore how principles of freedom and equality are applied in the context of gendered practices within minority groups. Whether and to what extent the relationship between difference and sameness is taken into account will be explored on the basis for concrete cases, ranging from family practice, legal advice cases to administrative and court practice. The consideration of culture within law has not been object to any overall analysis in Norwegian legal science. As regards the validity of the argument there is great variation. Within In Norwegian family law theory the cultural argument is seen as valid in relation to consideration whether a forced marriage is void. In cases of domestic violence or murder the Norwegian supreme court no longer see cultural considerations as a mitigating factor.
The Gender Equality Complaint Board has seen has in a recent ruling come to the conclusion that prohibiting a woman working as a room hostess at the SAS hotel from wearing a headscarf would constitute gender discrimination.
Researchers within this project will analyse the consequences of the use of the cultural argument from the perspective of individual women and assessed it in the light of the CEDAW.
At the level of local practice researchers in this project will explore familiy determinations in relation to marriage, divorce, matrimonial property and inheritance. How different actors involved in family determinations juggle Norwegian law, the law of the home country, religious law and customs to suit their interests is an overall question. The researchers will seek an understanding of how the position of women as individual Norwegian citizens and as part of wider family, ethnic and religion is constituted in the process of family determinations and legal aid cases.
The aim of the case studies is to contribute to a grounded and context sensitive non-discrimination protection encompassing national law, international private law and local practice setting out measures that respond to immigrant women’s situation on the ground.