In their article, Hudson, Bowen, and Nielsen (Reference Hudson, Bowen and Nielson2011) argue that inequities in family law codify an evolutionary legacy of male control over female reproduction that correlates with increased rates of violence against women. Their general argument is comprised of three fundamental premises. First, the authors provide empirical evidence indicating a relationship between inequities in family law, defined as “state regulation of marriage, parenthood, dissolution of marriage, custody of children, and transmission of goods across generations” (454), and levels of physical violence against women in particular societies. Second, the authors anchor their general argument in a feminist evolutionary analytic approach (FEAA). They contend that evolutionary forces are an ultimate cause of patriarchy and violence against women, even as they acknowledge the importance of more proximate causes of specific forms of violence against women. According to the authors, an FEAA approach can help explain “persistent patterns of patriarchy throughout human history” (464) and “…tells us that there is a strong evolutionary component to violence, and that its origin is male-female conflict over reproduction, and that these influences will be mirrored in human systems of family law” (468). Finally, the authors draw upon the two previous premises to build the third and most critical premise of their argument. Because the authors believe that evidence showing a correlation between inequities in family law and levels of physical violence are ultimately rooted in evolutionary dynamics, they conclude that “[s]ocieties that persist in safeguarding inequitable family law are societies built upon evolutionary male reproductive strategies of structural control and higher levels of coercion of women by men” (470).

Building upon these linked premises, the authors argue that we should expect lower levels of violence against women in societies that use law to mitigate the coercive effects of evolutionary male reproductive strategies. Conversely, we should expect higher levels of violence against women in societies that are built upon “evolutionary templates of inequitable family law” (470). Thus, they conclude that legal enclaves that defer to religion and culture in allowing inequitable family law jeopardize the rights of women and, therefore, question the advantages of legal pluralism.

Although the authors present each of their fundamental premises as inextricably linked, it is necessary to disentangle their various claims in an effort to assess the ultimate merits of their argument. While other contributions evaluate the evidence linking inequitable family law and rates of violence against women and the validity of the feminist evolutionary analytic approach, this response focuses primarily on the authors' claim that changes in formal law provide an effective solution to mitigating violence against women. The evidence linking inequities in family law and violence against women appears to be compelling and makes intuitive sense. Further, an FEAA approach provides a plausible (though not definitive) explanation of the persistence of patterns of patriarchy and violence against women across time and space. Even if feminist scholars were to agree on each of these two claims, however, the argument that formal law (at either the state or international level) is the most effective way to break patterns of violence against women does not necessarily follow.

Rather, working from the bottom up within traditional/conservative religious and cultural communities may arguably be necessary to affect real, sustainable change to discriminatory and violent practices against women. Even if the adoption of formal universal laws prohibiting discrimination and violence against women are morally desirable, they may not be the most effective strategy for change to the extent that they produce cultural backlash and unintended or counterproductive consequences. In this regard, a brief consideration of a couple of examples of transnational efforts to end harmful cultural practices against women is revealing.

The historical campaign to end foot binding in China is an instructive example of a transnational campaign to eradicate a harmful traditional practice that was not rooted in a legalistic framework. Neither international legal norms nor state-level legal prohibitions played a critical role in transforming this cultural practice. Rather, bottom-up initiatives were a driving force behind the cultural changes that contributed to the eventual eradication of foot binding in China. Transnational activists opposed to foot binding initiated a campaign that sought to educate families about China's isolation in this cultural practice and also sought to build community support for an end to foot binding. Specifically, activists opposing foot binding facilitated the formation of parental associations in which parents committed not to bind the feet of their daughters and not to allow their sons to marry women whose feet were bound. Coupled with changing economic conditions that weakened patriarchal family structures and increased economic and educational opportunities for women, this bottom-up campaign succeeded in reducing support for a harmful cultural practice within families and communities and ultimately contributed to its eradication (Mackie Reference Mackie1996).

Likewise, transnational activism against female genital cutting may be more likely to succeed when activists from local communities have partnered with religious and traditional leaders or with local medical practitioners to promote change (Mgbako et al. Reference Mgbako, Saxena, Cave, Farjad and Shin2010, 123–36). Critics of efforts to eradicate female genital cutting have argued that transnational activism against the practice has too often been culturally insensitive. Indeed, reform efforts that smack of cultural arrogance may produce an unintended backlash that encourages local actors to embrace female circumcision, and other cultural practices depicted as harmful by outsiders, as a form of resistance against perceived Western imperialism (Thomas Reference Thomas, Shell-Duncan and Hernlund2000, 137–41; Hernlund and Shell-Duncan Reference Hernlund and Shell-Duncan2007, 44). Formal law imposed from a distance by governing elites at either the level of international organizations or states may be perceived in this way, especially by groups that are marginalized by state institutions or that have limited active involvement in governing institutions and structures. Acknowledging the limitations of formal law as a tool for affecting change is not to say that law plays no role. In some cases, fear of prosecution under bans on female genital cutting may empower individuals and groups who are seeking tools to resist the practice (Hernlund and Shell-Duncan Reference Hernlund and Shell-Duncan2007, 47–48). Nevertheless, even those studies that indicate that formal law may help to facilitate change suggest that the law alone is not sufficient. Indeed, it continues to be likely that transnational campaigns to reduce female genital cutting as a cultural practice will require ongoing collaboration with local cultural, religious, and/or medical actors within specific social, political, and economic contexts and will be more likely to succeed than strictly legalistic campaigns originating from outside particular communities that harshly condemn the practice as a violation of fundamental human rights.

Hudson, Bowen, and Nielsen acknowledge that the relationship between formal law and cultural and social practices is complicated. They concede that states do not always enforce formal laws and often defer to family law practices diverging from formal law. They also point out that state law sometimes codifies its ultimate deference to cultural practices. Nevertheless, the authors ultimately conclude that formal law remains an important tool for changing inequitable cultural practices:

I concur with the idea that law may be a strong normative factor, and I certainly am not arguing against the principle of universalist laws prohibiting violence against women and promoting more equitable family laws. Nevertheless, I am more skeptical than the authors about the penultimate value of formal law as a mechanism for social and cultural change.

Formal law can provide a false sense that the most challenging political struggles over family law have been won when, in fact, the most critical contestations over inequitable practices are taking place on the ground, in communities and families, outside of the reach of the state. The examples briefly considered in this response suggest that the law alone will not be enough and, if wielded in clumsy ways by “outsiders” who are perceived as being hostile to the communities they are trying to change, may actually produce counterproductive consequences. Hudson, Bowen, and Nielsen (Reference Hudson, Bowen and Nielson2011) believe “that there can be no compromise on the universality of the human rights of women, including—and perhaps even most consequentially—within family law; when the human rights of women are compromised, the inviolability of the human rights of every human being is also compromised” (486). As a matter of principle, I could not agree more. Nevertheless, I am less optimistic than the authors that the adoption of universalistic laws calling for formal equality for women in law will produce equality for women in practice.

Reducing violent and discriminatory practices against women requires much more than changes in formal legal frameworks. The persistence of high levels of violence against women in countries with laws proscribing such violence indicates the limitations of formal law. Formal law is even less likely to be an effective tool in countries with weak legal and administrative capacity. Instead, efforts to reduce violence and discrimination against women require sustained localized engagements with specific communities. Activists and scholars seeking to promote equality for women need to understand the particular contexts that sustain violence and discrimination against women and then to use this understanding to empower local actors to shape these contexts in ways intended to improve women's lives, as defined by the specific women with whom they are working. Formal law may, in some cases, be a useful tool for empowering women within local contexts. In other cases, it may be a counterproductive obstacle to change. Understanding whether law will be helpful depends very much on particular local contexts, and formal law as a “one-size-fits-all” solution for reducing violence against women is not, at the end of the day, a sufficiently nuanced response to discriminatory and violent practices against women that are deeply embedded in specific economic, social, and political contexts.