Last week I gave a guest lecture at Science Po, in the course ‘Feminist Legal Theory’. The students from Science Po Paris and Le Havre got together online. They read my article Walking a thin line: Taking children’s decision to marry seriously? and we had 90 mins-long Q&A session, based on three thematics. Sharing some of the questions & my notes here.
- 1st thematic: “International Paternalism”
You describe “human rights” as an hegemonic/dominant discourse that sets what is moral and what is not – what is considered as a “good life” for children. Imposition of the moral authority of the international human rights regime: what is the “right thing to do” for a child. Link between supranational legal institutions, their discourse and local practices/regulations. What role does this supranational moral authority have on the ground? Does it replace other moral authorities (the one of the father, the one of the family, the one of the community, the one of the religion…) → Concretely – on the ground – does international child marriage regime has an impact on local legislation and practices? Does this hegemonic discourse have a concrete influence on how child marriage is considered/practiced in Bali but also on how is child marriage domestically regulated?
International discourse on child marriage does reach the Indonesian national legislative level by the campaigns of Indonesian human rights and women’s rights organizations. For the last 10 years they worked to change the minimum age for marriage under the Indonesian state law. They have been filing petitions to the constitutional court, saying that the minimum age should be raised as it is gender discriminatory and therefore unconstitutional. They could not put their petitions through previously, but on the second or third try they very recently succeeded in this petition.
What is interesting to look at here is who picks up the international discourses and who holds other and contrasting values. If you look at the debates around the petition, it becomes clear that the international discourse is picked up by the elite, educated aboard, urban, upper-middle class, liberal groups of people. On contrary, if the different opinion heard at the hearing of this constitutional court case is by conversative Islamic organizations. They opposed to the rise of the minimum age, as they see that if the age is raised, it will increase the chance of pre-marital sexual intercourse, which is considered a big sin in Islam. They fear the ‘dating’ period before marriage.
Indonesia is a Muslim majority country and Muslim organizations are politically powerful. There are both more moderate and more conservative Muslim organizations and the opinion about child marriage between these different strands of Islam differ. A few years ago a group of ulamas (Islamic clerics) issued a fatwa that says Islamic teaching does not support child marriage. That is more liberal and moderate Islamic view. On the other hand, conservative groups completely go against it. There is a group in Indonesia call themselves ‘Indonesia tanpa pacaran’ – dating is not good, considered ‘dirty’, ‘polluted by Western free sex culture’, so they promote marriage by all means and encourage young people to get married quickly without much dating period that is ‘risky’, ‘immoral thing can happen’.
International discourse – does not reach the local level directly. For instance, local judges do not apply international human rights laws in their rulings of cases, and they are not aware of these norms. In localities of Indonesia such as Bali, the ordinary people do not know about international human rights norms, that child marriage is considered ‘bad’. The ‘child brides’ whom I interviewed do not know the word child bride or child marriage and do not consider themselves as one or ‘victims’ of child marriage at all. I also did not interview them or treat them as victims. I also did not use the word child marriage in interviewing them, I just asked when they married, why they married, who decided, what happened after etc.
Here you maybe would like to argue that they do not consider themselves as victims as they are ignorant of the violence or injustice they face. I can imagine that feminists argue that, knowing the term and being able to name the injuries you experience, empowers the girls and women. But I ask: which one of them are ignorant? The girls in rural Bali might be ignorant of the international norms. But human rights officers from Geneva might as well be ignorant of many things about the local realities in Bali. They just do not have the common knowledge, not that the girls in Indonesia are more ignorant.
Point raised by Mohanty: Mohanty (1984: 336) warns Western feminist scholarship by pointing out their scholarship’s hegemonic political effects. She says it creates unhelpful image of ‘the Third World Women’. Here maybe we should move to the second thematic.
- 2nd thematic: “Agency” / Post-colonialism
In your articles you show that the current human rights frameworks on child marriage ignore the possibility of exercising agency in ‘traditional’ settings. I would like to come back on this notion of agency. What is agency in human rights discourse? It’s the ability to make decisions about its own life, without this being dictated by the norms (of the kin, of the community, of the family, of the religion, etc.). This corresponds to the liberal autonomous self. The dominant child marriage discourse has shown it celebrates the autonomous women and dismisses ‘tradition’ as a constraint on a woman’s autonomy. Such a normative position is based on the modern ideals of autonomy, that we all should be able to make decisions about our own lives, which is especially important in the lives of women. This notion of agency denies the possibility to exercise agency inside norms that seem from an outside perspective a constraint. Saba Mahmood suggests, instead of understanding agency as the capacity to realise one’s interests against the weight of custom, tradition or other obstacles, we should talk about one’s ‘agentival capacity’ that is entailed not only in acts that resist norms but also in multiple ways in which one inhabits norms. // headscarves: what seems a symbol of oppression to an outsider can be the exercise of a Muslim women’s autonomy. → Could you tell us more about what you call “relational autonomy”? Could you illustrate with your work “autonomy’s complexity” – the existence of multiple perspectives on an individual’s decision that divert from a liberal perspectives anchored in the human rights framework?
The modern world is then where individuals’ choices become and are considered increasingly important. The human rights framework subscribes to this ideal: Ignatieff (2003) and Merry (2009: 385, 404) demonstrate that the protection of agency is the core principle in human rights discourse (see Section 2.3). Santos (2015: 6) also argues that collective rights are not part of the original canon of human rights, and the priorities continue to be accorded to individual rights over collective rights. Indeed, the ideals of modernity are at the base of international advocacy to ‘end child marriage’. The ideal is that individuals should be fully autonomous and emancipated, ‘free’ from social norms that chain them. This approach is what Mackenzie (2013) calls a libertarian understanding of autonomy.
Based on Gidden’s and Mahmood’s accounts on agency and structure, I used relational autonomy for the analysis of the research on child marriage. According to these understandings, agency is an ability to choose by making internal reconciliations with structure, i.e., patterned arrangements that influence or limit available choices. And such choice, limited by one’s sense of moral community, is not less rational than that of the “full autonomy” that just does not exist (Rorty 1998: 178).
In his concept of liquid modernity, Bauman (2000: 8) points out that individuals do not become free from structures. Traditional structures do not disappear but are replaced by self-chosen ones. This point also highlights that the structure that actors interact with is not the essentialized ‘culture’ or ‘tradition’, but persons with whom they are in relationships. To unpack the social connection that constitutes ‘structure’, I use the socio-psychological concept of ‘reference network’. A reference network is defined as a set of individuals whose actions and opinions we care about when we make our choices (Bicchieri 2016: xiii). We constantly observe what others do, and from these observations, we get clues about appropriate behaviour, other’s preferences, beliefs, and so forth. Accordingly, individuals prefer to conform to the socials norms of their reference network.
Now I have defined the relational autonomy and I want to move on to explain why it is important in the analysis of international human rights framework.
Donnelly’s (1984: 415) argues that modern institutions “tend to create communities of relatively autonomous individuals, who lack the place and protections provided by traditional society”. For instance, in Strathern’s work, when a national court in Papua New Guinea adjudicated a case concerning a local dispute settlement that comprised a girl as compensation from one clan to another, the girl expressed her worry that the trial process might result in the loss of her tribal support (Strathern 2004). Sally Merry’s work on women’s rights in Hawai shows similar conflict of interests. If the ultimate purpose of human rights is not only to enable persons to be autonomous agents but also to relate to other persons through mutual respect and cooperation (Freeman 1994: 507, 508), not only the full autonomy but the ‘relational self, formed by traditional kin and community, need to be recognized.
As I showed by employing reference network framework, it is not only the members of the ‘traditional’ ‘rural’ communities that are constrained by relationships and customs. Geertz said “Man is an animal suspended in webs of significance he himself has spun” (Geertz 1977). This remark underlines that what is now understood as ‘autonomy’ is inseparable from social relationships around the self. Therefore, the modern ideal of complete ‘autonomy’ is an illusion. Thus, it is more useful to think of “relational autonomy”, which suggests that social relationships are a necessary background, enabling conditions for autonomy (Mackenzie 2013).
Autonomy’s complexity also highlights the existence of multiple perspectives on an individual’s decision. A decision that seems like a sacrifice of autonomy to an outsider is sometimes an act of relational autonomy for an insider. The current human rights system and black-and-white conceptualization of child marriage are insensitive to such possibilities.
This understanding of autonomy or agency is also useful to overcome the well-known challenge of development: Not to dismiss the agency of women in the Third World (Mohanty 1984). Alongside respecting non-western women’s agency, there is also an increasing need to respect children’s agency (Bourdillon 2004). The common protectionist approach of ‘saving’ children is increasingly considered unproductive, as it deprives those under 18 of agency and choice (Grugel 2013: 23; Hart 2006). In this sense, the agency of girls in the Third World is the most precarious in international development discourse. Recognizing the relational aspects of agency is a way to ‘open up space for the agency of non-western peoples’ in development discourse (McEwan 2001: 95) and to challenge the paternalistic notions of development that rely on ‘assumptions of superiority, linear progress and Western women’s freedom’ (MacDonald 2016: 6).
In your article, you specify that “UNICEF Indonesia clarifies that, even if the child consents to the marriage, it is to be considered a forced marriage, as such ‘consent’ is an outcome of prevailing social norms whereby children are expected to marry as children”. It made me think about the concept of “constrained consent” that Janet Halley (in an article on Affirmative Consent – California Status on Sexual Assault) uses in order to designate the “internal state of mind of agreeing to something because one perceives it as better than the realistic alternatives”. It echoes as well the case of Ayu: Despite the limited life options Ayu seems to have, she was surprisingly proactive and her marriage decision displayed genuine agency of her own: she set up the plans for marriage and only later informed the adults of the decision. Ayu seemed to be aware of the limited options available to her and chose what she felt was her best option. → Maybe a link with your current research on the age of consent?
Situational and relational aspects of agency.
When children’s rights literature and convention talks about children’s evolving capacity, agency and participation in decision-making, it is often measured by their level of participation in the decision-making process. If their voice is being heard and respected for making decision concerning them. But I argued that the model of participation is not appropriate to be used to consider children’s agency as only concerns ‘output’ of children’s voices. Understanding agency must include exploring the nature of voice. For instance, Komulainen (2007) points out that those who aim at ‘listening to a child’s voice’ have to also consider social dynamics. I talked about this in explaining relational autonomy, but when it comes to children’s agency, their inevitable dependence on others is particularly important. Legally, socially, and materially, parents have power and influence over their children (Fineman 2017: 145), and this shall not be neglected when ‘listening to children’s voices’.
In evaluating children’s capacity to exercise agency, the situational aspect of their capacity is important. Ansell (2009: 204) discusses children’s limited “capacity to effect deliberate change” when they are in highly constrained contexts. Hart (1992: 24) also distinguishes “children in especially difficult circumstances”, describing children with no family, or who are affected by a disaster, poverty, or armed conflict as a group with a greater challenge to participation.
To discuss the boundary between “consent” and “coercion”, social, economic, gendered, and cultural constraints should be considered, and possibilities for the refusal of consent is a necessary condition for “real autonomy and meaningful consent” (Bunting et al. 2016). Even when they are ‘consenting’, they might not be exercising their agency in the strict sense if their ‘voices’ stem from the particular power relationships they are in or from highly constraining contexts. So how we understand and conceptualize agency becomes crucial. As MacKinnon suggested, we talk about consent without really knowing what it entails, and that becomes a problem because things that are otherwise not accepted come to be accepted by framing acts consensual.
That’s what fascinates me to do the current research. When legal definition of rape or sexual harassment is changed, and things that were previously not considered rape come to be considered rape, we change our perception of violence and morality. What we consider is ‘consensual sexual act’ keep changing, along with changes in societal norms but also with changes in legal sphere. And the legal changes are also somehow influenced by how the societal norms about the issue changes. What we believe is moral and immoral is influenced by the law and the judicial outcomes: at the same time, Durkheim says that law is our ‘collective conscience’ – law is the product of our perception of moral and immoral.
Hoko Horii 