Vol. 15 No.3 (March 2005), pp.227-230

THE GENDER OF CONSTITUTIONAL JURISPRUDENCE, by Beverly Baines and Ruth Rubio-Marin (eds). Cambridge, England: Cambridge University Press, 2004. 356pp. Cloth $75.00 / £45.00. ISBN: 0521823366. Paper $34.99 / £19.99. ISBN: 052153027X.

Reviewed by Judith A. Baer, Department of Political Science, Texas A&M University.  Email: JBAER@politics.tamu.edu .

In the old days, when scholars argued whether enough research on women existed to fill a course, comparative politics and public law turned early and eagerly to the study of politics and gender.  This development coincided roughly with political science’s discovery of comparative public law. But the integration of comparative law and gender studies has barely begun. As the editors of THE GENDER OF CONSTITUTIONAL JURISPRUDENCE point out, the literature on comparative constitutional law “remains “virtually devoid of research that pertains to women’s rights” (p.2.). Beverly Baines and Ruth Rubio-Marin—respectively, a Canadian and a Spanish constitutionalist—have two purposes: to formulate “a feminist analysis of constitutional jurisprudence in which gender becomes the focal point” (p.1), and to “design a feminist constitutional agenda as a middle ground between the extensive and reality-driven delineation of issues that feminist scholars advance and the more rigidly bounded . . . doctrinal categorization found in constitutional law scholarship” (p.5.) The editors make no claim that the twelve studies included here fill the “huge gap—a gender gap—in contemporary comparative constitutional analysis” (p.2) or provide a basis for the constitutional agenda they seek. But this book is a welcome start.  Separately and together, these articles add to our theoretical understanding and reaffirm a truth that contemporary political science is in danger of forgetting: the value of single-country studies.

In the old days mentioned above, terms like “area study” were used without accompanying sneers. Many renowned comparativists specialized in a one region or country. But in recent years, specialties like comparative political economy, which do not require knowledge of specific legal systems, cultures and languages, have gained stature in the field. It is difficult to dispute the conclusion of one well-known scholar that the laws of economics apply everywhere, regardless of regional differences.  Although this observation is of limited interest to scholars whose interests lie outside political economy, a hierarchy of values has developed whereby single-country studies are considered inferior to general explanations that can be applied across national and regional boundaries. As a result, specialized local knowledge is undervalued in comparative politics. Yet it is equally difficult to dispute Baines’ and Rubio-Marin’s statement that constructing feminist theory and strategy requires the contributions of the scholars who accepted their invitation to “think in a gendered way” (p.5) about [*228] constitutional jurisprudence in the countries they studied.

The more we know and the more countries we know about, the more difficult it becomes to develop cross-national theory. Differences threaten to overwhelm similarities. The countries included here are alike enough to make comparison justifiable and distinctive enough to make comparison interesting.  All these countries have written constitutions except Israel, whose Basic Laws serve as an equivalent. All are democracies—republics, if you prefer—and all have appellate constitutional courts of final appeal.  All are formally committed to gender equality, but a wide gap exists between theory and practice: women are underrepresented legally and under-rewarded economically.  Although “we are not entirely without constitutional agency” (p.1)—women make constitutional claims, argue cases, legislate, and have served on supreme courts in all twelve countries, voted on Australia’s constitution in 1901, and participated in constituent assemblies in Colombia (1991) and South Africa (1993)--women act within legal systems designed by and for men.

The countries represented here include three Anglo-American jurisdictions (Australia, Canada, and the US), two South American (Columbia and Costa Rica), three European countries (France, Germany, and Spain), and four that are sui generis (India, Israel, South Africa, and Turkey.) These countries’ economic systems occupy various points on a spectrum from capitalism to socialism.  Five of these nations are former British possessions. Three are predominantly Roman Catholic, one Jewish, and one Islamic; relationships between religion and the state vary from Israel’s Jewish identity to India’s religious federalism to Turkey’s secularism. The existence of a woman’s right to wear Islamic dress is a constitutional no-brainer in both the US (yes) and Turkey (no); whereas in France it is a matter of legal as well as political controversy. This list could go on indefinitely. The only way to find out whether comparative analysis is fruitful is to plunge in and look for commonalities.

This is what Baines and Rubio-Marin proceed to do, and they do not disappoint. They identify three constitutional equality doctrines that recur in some or all of the articles. The first two, formal equality and separate but equal “rely on the Aristotelian notion of treating alikes alike, and unlikes unlike. Accordingly both focus on the relevant differences and similarities . . . between men and women as groups” (p.13.) This is familiar ground to the student of American constitutional law. Justice Ruth Bader Ginsburg’s opinion in U.S. v. VIRGINIA contains both a powerful statement of the first doctrine and a rejection of the second as a contradiction in terms, like its racial counterpart. In Canada, however, a unilateral “separate but equal” doctrine persists; courts have ruled that the Charter of Rights and Freedoms requires men’s athletic teams to be open to women, but not vice versa.

But equality jurisprudence does not stop with these two doctrines. “Substantive equality” seeks not to classify women in contrast to men, but “to identify patterns of subordination and suppression of women as a group by men as a group on the understanding that most sex discrimination originates with the long [*229] history of women’s inequality in almost every area of life rather than inhering in sex as a conceptual category” (pp.13-14).  In this view, discrimination is the symptom, not the disease; the difficulty with formal equality is not that it is based on erroneous notions of similarity between the sexes, but that it does not go far enough to cure the disease.

All three equality doctrines are vulnerable to the criticism that “the ‘benefits’ or ‘advantages’ [they try] to extend to women rely on traditionally male definitions of the good life” (p.14). Yet many feminists mistrust traditionally female definitions of the good life as traps, and it is possible that the narrower the status gap between men and women gets, the more the traditional male priorities will appeal to women. American doctrine’s commitment to (or fixation on) formal equality has led to restrictions on autonomy in the guise of protecting differences. MULLER v. OREGON put woman “in a class by herself” because of her childbearing functions. While formal equality has long since won out over special protection, the Supreme Court continues to use reproductive functions as a rationale for deviating from formal equality (MICHAEL M. v. SUPERIOR COURT OF SONOMA COUNTY; NGUYEN v. INS.)

The danger of taking this logic to extremes is illustrated by a ruling upholding the India Divorce Act’s provision that adultery is grounds for divorce only for men because “a woman’s adultery may result in conception” (p.181). Turkey’s constitution mandates gender equality, but the constitutional court upheld a provision of the Turkish Civil Service Code that gave each cabinet ministry the discretion to deny women eligibility for jobs “not suitable for women’s bodies” (p.288).  The American constitutionalist may wonder whether equality and protection will prove any more compatible in Turkey than they did in the USA.

American law has tended to perceive the relationship between gender equality and women’s reproductive and family roles as adversarial. The controversy over CAL FED v. GUERRA, in which the Supreme Court ruled that state-mandated childbearing leaves did not violate the Pregnancy Discrimination Act, saw feminists arguing on both sides. Yet the United Nations’ Universal Declaration of Human Rights provides both that “everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as . . . sex” (Article 2) and “motherhood and childhood are entitled to special care and assistance” (Article 25.2).  Several constitutions examined in this book operate on a similar premise that equality rights and gender-linked roles are compatible. Colombia’s constitutional court, for example, upheld a law giving social welfare rights to the daughters but not the sons of military officers  “given women’s frequent dependency on men” (p.87), but invalidated a provision giving officers’ single daughters preference over married daughters. Germany has found no incompatibility between Article 3’s provision that “men and women shall have equal rights” (p.160) and Article 6’s establishment of a constitutional obligation to protect pregnant women.

THE GENDER OF CONSTIUTIONAL JURISPRUDENCE provides a basis for challenging [*230] the premises of any country’s conception of equality. The demonstration that different nations have developed radically different ideas of what equality entails is welcome, because it indicates that constitutional republics may be able to learn from one another. At the same time, the discovery that a comparative study of gendered constitutional doctrine can provoke a sinking feeling of déjà vu indicates that some lessons may have to be learned again and again.




MULLER v. OREGON, 208 U. S. 412 (1908).


UNITED STATES v. VIRGINIA, 518 U.S. 515 (1996).


© Copyright 2005 by the author, Judith A. Baer.