One of the important perspectives that feminist analysis has brought to the study of politics is the value of the individual and the importance of capturing individual experience in our understanding of large social and political forces. Simple aggregation of individual experience can lose the richness of that reality. Yet the normative adherence to the critical appreciation of each person's life and experience need not prevent us from drawing inferences from patterns of behavior in order to help us intervene to improve the lot of those who suffer in the wake of systematic prejudice or discrimination.
Hudson, Bowen, and Nielsen's (Reference Hudson, Bowen and Nielsen2011) article is a tour de force. The article constitutes a groundbreaking analysis of an issue that has not received nearly enough scholarly attention in political science and feminist studies literatures. The question the authors pose regarding the influence of family law on violence against women crosses levels of analysis to ask how personal practices can influence larger societal processes. The authors utilize the WomanStats database to examine the relationship between inequity in family law, including such things as divorce and inheritance rights, and its effect on the overall level of violence toward woman in a given society. The fact that these data allow them to examine and empirically analyze virtually every country in the world gives these authors traction to address questions heretofore unexplored, illuminating the patterns of discrimination that are so important to uncover in striving to achieve equity between all people across societies. The strength of their findings should alarm even the most complacent of scholars.
The authors explore a novel theoretical argument and provide convincing empirical documentation of the effects they hypothesize. Using insights derived from evolutionary theoretical models, the article also provides compelling examples and careful representation of the alternative justification for keeping legal enclaves intact. They do not treat the opposition in this argument as a straw man. Indeed, they note the counterintuitive reality that many of these processes are enforced by women, not men. The reasons for this are often subtle and complex. My personal belief is that in societies where the marital bond is weak relative to the mother-son bond, the mother's primary and often only source of physical, economic, social, and political protection lies with her son, particularly where patrilocality rules. As a result, mothers often need to maintain constant vigilance to retain their personal primacy in their son's affections in order to remain secure. This means that they have to make sure that their sons do not get overly attached to their wives. Female genital mutilation, so-called forced honor suicides (often perpetuated by mothers-in-law against daughters-in-law in the mother's households while the son is away) (UNICEF 2012) and other processes help support this psychological dynamic.
In endorsing the critical value of Hudson, Bowen, and Nielsen's contribution, I would like to make a methodological point, followed by a broader theoretical one. To begin with truth in advertising, I was centrally involved in the development of the family law scale that Hudson, Bowen, and Nielsen use as the independent variable in their analysis. Over the course of 2007–2008, with two gifted undergraduate students, we coded an amalgam of items into a family law scale and then applied this scale to all the countries for which we had sufficient data. This variable, along with notes on its scaling, are publicly available on the WomanStats database website (www.womanstats.org), and interested readers are encouraged to explore the database.
As an aggregate scale developed from a number of other individual variables, certain judgment calls were made about which factors to include and which to exclude in constructing this variable. Other people would include items I left out, just as they might exclude some I included. To be clear on the overall decision rule, I included those items for which there were data available in the WomanStats database that seemed to affect most directly the day-to-day experience of legal rights that women in a given society had over their family unions. In other words, I wanted to capture, as fully as possible, how much control a woman in a given country had over her own family and reproductive life. Most obviously, this included things such as when and whom to marry, whether to have children, whether it is possible to get divorced, and whether it is possible to have custody upon divorce, or inheritance upon the death of a relative. For each of these items, we included both the law in a given society, as well as data about prevalence and the actual practice within a society. Some items I may have wanted to include, such as degree of parental coercion around friendship networks, were simply not possible to include due to lack of data. Their exclusion should not imply that I did not find those items worthy of consideration, but rather simply reflects a lack of available systematic data. Where law and practice diverged, we gave more weight to practice over precedence in scaling a society in order to value individual experience over abstract legislation.
Next, we recognized that the inclusion of marital rape as an item in this scale mainly distinguishes industrialized countries from other countries. I recognize that some readers will find this inclusion to reflect particular western values, but we felt that this item still reflected important societal values about whether law instantiated protection of women against bodily violations against their will, and thus included it (Nussbaum Reference Nussbaum2005). Finally, Hudson, Bowen, and Nielsen note that they do not agree with the inclusion of abortion into the family law scale, but I felt that this control over reproduction offered a truly critical test of a society's recognition of female physical and social independence. This choice is consistent with the UNFPA framework on Sexual Health and Reproductive Rights (UNFPA 2008).
The items included in this database include largely qualitative data that reveal individual experience, which we then aggregate for purposes of our statistical analysis. This examintion rests on a deep respect for individual experience and a desire to highlight commonalities of inequity across societies. Increasing knowledge through replicable processes of empirical scientific examination depends on incorporating a variety of methods into research, including quantitative, qualitative, experimental, and narrative. I believe feminist scholars, like other scholars, are best served by utilizing those methods that best illuminate the particular question being addressed. Hudson, Bowen, and Nielsen do a very good job of this by using family law data to make their case about its importance for reducing violence in society.
In turning to the theoretical aspect of my commentary, Hudson, Bowen, and Nielsen put forward a bold evolutionary perspective in their article. I suspect that this approach has largely been absent from feminist theorizing for a couple of reasons. First, although evolutionary modeling has become dominant across many other social science disciplines, it often suffers from association with the belief that such theories somehow privilege men over women by taking biological differences—and their predictable psychological consequences—seriously. Importantly, the system is agnostic to values; evolution does not care if women do better than men. Natural selection is not a theory; it is a fact. We have each descended from our ancestors. We can dispute how important that genetic and biological legacy is in informing our current experiences, perspectives, and behavior, but we cannot dispute the fact that each of us was biologically born as the result of human mating, whether real or artificial.
This leads to my second point about why I suspect many feminist scholars may find evolutionary models uncomfortable. Equality for women, legally and socially, has been hard fought, and whatever aspects of it has been achieved, have been hard won. The dominant position for many early feminists required that men and women actually be equal in order to be treated as equal. This notion also rested on dominant scholarly notions of the time that assumed that most individual variance was socialized and did not derive from biological factors in any meaningful way. Rather, if men and women can be proved equal, then there exists no justification for unequal treatment. But as many people learned in personal and painful ways, equality does not always constitute justice. Sometimes justice requires special consideration, as is the case with regard to disability law. In the reproductive realm, a woman who has a baby requires more support than a man whose partner has a baby; by necessity, she needs more calories when she is pregnant, is less able to move around to obtain those calories, especially as the pregnancy progresses, and those increased needs may be sustained through lactation, if she desires to transfer her immunity to her child by breastfeeding. A law that gives equal consideration for parental leave might be fair but will not be just. In other words, sometimes true justice depends on the recognition of difference. This does not mean that such difference can, or should, ever be used to justify the abhorrent “separate but equal” mentality that undergirded the horrific 1896 Plessy v. Ferguson U.S. Supreme Court decision supporting racial segregation. Importantly, races are not biologically different in the way that men and women reproductively differ in enduring and distinguishable ways. Women need not be proven physically or psychologically identical to men in order to demand just treatment before the law.
Importantly, Hudson, Bowen, and Nielsen highlight that legal enclaves may often intrude on equitable treatment of women before the law, even in societies where they obtain broader rights. In this way, they show how endorsing relative cultural values can often work to undermine equality across wider aspects of society. This challenging issue poses important ethical and normative concerns for political scientists in general, and feminist scholars in particular. Hudson, Bowen, and Nielsen's article should encourage broader investigation of the meaning and manifestation of conflicting societal and cultural values within and across such religious, cultural, and ethnic enclaves.
This article on family law forces scholars to consider the systematic nature of the relationship between individual level variables and hugely important societal level outcomes, such as the occurrence of violence against women. Hudson, Bowen, and Nielsen bring to bear an illuminating and provocative evolutionary perspective that highlights some of the ways in which psychological mechanisms surrounding dominance can become instantiated into legal statutes that perpetuate the vulnerability of women to men in certain societies. Using systematic empirical data to reveal the patterns of such influence across cultures, Hudson, Bowen, and Nielsen contribute a new understanding to how sex differences can influence political choices, how political choices constrain personal freedom by sex, and how systematic patterns of dominance and discrimination influence individual choice.
