Liberal to Carceral Feminism' by Karen Engle in Janet Halley, Prabha Kotiswaran, Rachel Rebouché and Hila Shamir (eds)
Governance Feminism: Notes from the Field (University of Minnesota Press, 2018)
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Feminist legal theory came to international law and discourse later than
it came to many other legal fields. It primarily emerged in
international human rights where, in a surprisingly short amount of
time, it went from being extremely marginal to relatively mainstream.
Not unrelatedly, it has primarily grown, and also developed significant
influence, in the doctrinal areas of international humanitarian and
criminal law. This piece, written as a chapter in a book on governance
feminism, chronicles the trajectory of feminist engagement with
international law, paying special attention to how both feminisms and
feminists have played governing roles in its development and operation.
The chapter provides an account of three distinctive feminist approaches
to women’s human rights that developed from the mid-1980s through the
mid-1990s. Each of the three approaches is identified according to its
distinctive concern: liberal inclusion, structural bias, and the Third
World, respectively. During the early period of feminist engagement,
these approaches variously competed, complemented, and exchanged with
each other in the push for a feminist foothold in human rights law. But
the end of the Cold War, a compromise around “culturally sensitive
universalism,” the emergence of a preoccupation with sexual violence in
conflict, and the pursuit of criminal law as the primary response to it
all ultimately functioned to favor a strand of structural bias feminism
focused on female sexual subordination and to suppress and sideline the
other feminist critiques, especially their material dimensions.
Tracing this genealogy, the chapter calls into question a dangerous
common sense about sexual violence in conflict, a common sense that
bears upon culture, sex, economic distribution, and criminalization, and
that still dominates human rights law and discourse today. It seeks to
motivate a return to, and reevaluation of, other possibilities of
feminist critique that were left by the wayside when the structural bias
critique prevailed, and when sexual violence and carceral responses
became central to feminist approaches to human rights law.
