Responding to Institutional Failure Where Failure is Pervasive: A Response to Michaela Hailbronner’s The Failure of Others.
[Editor’s note: this is the third of four posts commenting on Michaela Hailbronner’s new book, The Failures of Others: Justifying Institutional Expansion in Comparative Public and International Law (Cambridge University Press, 2025)].
Michaela Hailbronner’s The Failures of Others: Justifying Institutional Expansion in Comparative Public and International Law is a brilliant and important book, one which will inform debates about constitutional theory and judicial role for a long time to come. Hailbronner’s ambitious book gives the first comprehensive theory of responses to institutional failure by courts and other constitutional actors. The book’s breadth is impressive, as Hailbronner draws on rich examples from a wide range of domestic and international jurisdictions, from the US to Colombia, the United Nations to the European Union.
Likewise, Hailbronner’s nuanced normative theory of responses to failure is a major contribution to recent debates. The book rightly points out the underappreciated dangers of arguments from the premise that other institutions have failed in their duties, which can justify overreaches or even authoritarianism. And thus her argument, while defending the legitimacy (and a bit more skeptically, the efficacy) of interventions to ameliorate institutional failure, also insists on guardrails that are both realistic and important. She rightfully insists that failure arguments be distinguished from emergency arguments, suggests that institutions consider the existence of more democratic alternatives, and requires that responses be proportional in nature. As a theory of separation of powers, it adds an important angle to recent work calling for flexibility, collaboration, and responsiveness, as in Rosalind Dixon’s Responsive Judicial Review and Aileen Kavanaugh’s The Collaborative Constitution.
Institutional Failure as Commonplace
Hailbronner suggests that interventionist arguments from the failure of other institutions should be “safe, legal, and rare.” I am less certain about the “rare” part, either descriptively or normatively. Many of Hailbronner’s core domestic examples come from “global south” jurisdictions such as India, South Africa, and Colombia, which have often been innovators in conceptions of judicial role. In these jurisdictions, judicial and scholarly discourse suggests that widespread institutional failures of legislatures and bureaucracies are commonplace, not unusual. Dysfunctions in public health, social security, public safety, infrastructure, lawmaking, and many other realms. The U.S., long considered an archetypical “consolidated” democracy, right now demonstrates a veritable laundry list of dysfunctional institutional performance stemming from both constitutional and statutory factors. In the 1960s and 1970s when structural interventions in the U.S. were widespread, judges found numerous institutional failing in places like prisons, schools, hospitals, housing projects, etc. Those interventions trailed off over time not necessarily because the problems went away, but because of judicial ideology that made judges less willing to engage in them. As Hailbronner recognizes, institutional failures come in many shapes and sizes. But I would suggest reconceptualizing them in at least many systems as relatively routine problems within constitutional governance, rather than as exceptional events. This thrust is consistent with recent work by Gardbaum, Cepeda and myself, and others in a revised, more expansive comparative “political process theory.”
The implications of seeing institutional failure as often commonplace, not rare, are significant, albeit complex. Hailbronner focuses largely on the risk that courts and other institutions will abuse arguments from institutional failure to overreach; in many contexts, I would instead emphasize the risk – at least vis-à-vis courts – that narrow conceptions of judicial role and the separation of powers will result in too little willingness to engage with structural institutional problems. More broadly, there is a major risk that institutional failures will go unaddressed.
Targeting Judicial Review
One point is that at least judicial involvement in systemic institutional failure becomes in part a question of selection or targeting. Judicial review – at least of the structural variety – is a scarce resource. Hailbronner notes the “unconstitutional state of affairs” doctrine in Colombia, and the Constitutional Court’s efforts to confine more large-scale interventions to problems of significant size and a structural character. I would also emphasize the judicial imperative to consider the likilihood of success, which depends on finding political and non-political allies. As Hailbronner notes, successful cases of intervention often seem to work because significant aspects of the ruling coalition actually support what the court is trying to do and view judicial review as a useful tool to achieve their goals. The degree and organization of civil society support also seems important from comparative experience. The hard truth of these lessons is that sometimes, robust judicial intervention will be unwise despite a massive structural failure, simple because the prospects of having a significant effect are so low.
The Many Judicial Responses to Failure
Another point is about means. Hailbronner’s account of domestic judicial review focuses on large-scale structural remedies from the US, India, and South Africa that as she notes, have a promising but highly imperfect track record. Rodriguez-Garavito suggests that one key for efficacy is not merely the scope of the orders, but the robustness of the court’s monitoring mechanisms; even then, progress is usually slow and uneven. In comparative terms, these kinds of structural remedies are not particularly common. Because of political constraints, resource constraints, and more traditionalist conceptions of judicial role, many judiciaries around the world are too reluctant to deploy them even where warranted.
But, consistent with a world in which institutional failure is common, judicial review seems to respond to institutional failures in many different ways, of which the structural injunction is only one striking example. Consider the ways in which procedural forms of review can serve a similar purpose. Courts sometimes modulate the strictness of their review of government policies to their perception of how well the underlying institution has functioned, either in the particular case at end or more generally. A recent example is the way the US federal government seems to have lost the “presumption of regularity” during the second Trump administration, at least among many lower federal courts. Policies and actions that might previously have withstood scrutiny due to deference are now receiving a harsher reception as judges suggest that the government as a whole is not working in a normal, good faith way.
I think, then, that despite a growing bank of comparative work, responses to failure have not gone much beyond the “experimental” stage, where the right response is highly contextual, and success is quite contingent. Fostering an experimental ethos in judges, particularly in systems where this ethos is rare, may be the most important thing to do. As an example, the Colombian Constitutional Court in recent years been more reluctant to deploy the wide-ranging and durable monitoring devices used in its landmark internally displaced persons (2004) and right to health (2008) cases. But it has sometimes tinkered with other approaches that may impose lower costs on the Court, for example the use of South-African style engagement remedies or the outsourcing of most monitoring to an independent commission staffed with political, legal, and civil society personnel.
The Goals of Intervention
A final point is one asked but left somewhat open by Hailbronner’s analysis: what is the purpose of intervening in cases of institutional failure? One can distinguish between two ideal types of intervention: efforts to replace non-functioning institutions versus efforts to improve them. The lines between replacement and improvement are blurry, of course, and courts sometimes do both at the same time. Both strike me as having some legitimacy from a theoretical perspective. The argument for (at least temporary) replacement stems both from the primacy of realizing constitutional goals and the fact of redundancy as part of modern separation of powers, where legislatures, courts, bureaucracies, and fourth-branch democratic accounability institutions share overlapping functikons. The legitimacy of improvement-type interventions is probably easier to construct, based on Ely-like political process concerns and a longer-run effort to create a well-functioning constitutional system.
To what degree is either goal feasible? Courts can create workarounds for non-functioning bureaucracies, for example by allowing claimants to obtain benefits from badly-functioning healthcare systems via litigation. These workarounds, however, may come with their own pathologies, especially if benefits are only available to those willing and able to sue. As well, the existence of a judicially-created safety valve might actually reduce political pressure for bureaucratic reform by giving the relatively affluent and powerful relief.
Improvement, perhaps the more appealing goal in most cases, comes with its own difficulties. We know from experience that courts can have some impact on improving bureaucratic performance over time, at least under certain conditions. I would suggest that even this kind of slow-bore headway is very often worth it and may reflect some of the highest-impact forms of judicial review. The ability of courts to improve legislative functioning is even more difficult, but not impossible. One indirect impact of the IDP and health interventions in Colombia was to make the rights of victims and the right to health a much more visible part of public discourse, and the end result was the passage of reasonably effective, landmark laws in both areas; a similar dynamic seems to have happened with the right to food in India. It is implicitly tempting to compare these flawed interventions to an ideal world, but the more relevant comparison to a world without them, a counterfactual that almost certainly would have left things much worse off.
In short, Hailbronner’s The Failures of Others sheds much light on crucial questions, one which is deepened by reflecting on the frequency of the phenomenon she identifies.
[Editor’s note: this is the second of four posts commenting on Michaela Hailbronner’s new book, The Failures of Others: Justifying Institutional Expansion in Comparative Public and International Law (Cambridge University Press, 2025)].
Michaela Hailbronner’s new book has an evocative, almost filmic title that gestures towards a broad horizon of human interests: “The failures of others.” It is very well constructed: logically structured; written with efficacy and clarity; assertive but modest and careful in its contentions. The analysis is supported on a solid background of readings and debates that have marked the destinies of public law over the last decades. It reflects the kind of broad knowledge that singles out a responsible comparatist scholar, and a depth of view that is not easy to find in times of scholarship subjugated by the prevailing, hetero-imposed dynamics of “publish or perish.”
The focus of the book is use of “arguments from failure” in public law. As Hailbronner observes, institutions or power branches sometimes signal the failure of other branches or institutions in fulfilling their duties as a reason to expand their own radius of action. She identifies the differences between arguments from failure and invocations of emergency powers or implied powers, which share with the former an underlying logic of output-legitimacy. In her view, we should take arguments from failure seriously as a matter of public law –we should recognize them as legal doctrines. Yet because they come with substantial risks of abuse, she observes, their role should be limited by a set of normative constrains. First, they have a place only in contexts where there are interinstitutional relationships grounded on the ideal of working collaboratively together to achieve a shared purpose (living under a constitution is one such a context, though others may exist). Second, they must be, as she poses it, “safe, legal and rare” (read all about it at pp. 41-70). Third, they must be proportional and satisfy the tests of functionality, necessity and reasonable costs. The legitimacy of extending one’s power is connected to the legitimacy of the type of action that is taken in response.
After their preliminary clarification and evaluation in Part I, the book explores the deployment of arguments from failure in three domains: national (Part II), supranational and international (Part III). In the national domain, the “expansive” practice of structural adjudication engaged by courts in the US, India, Colombia and South Africa is examined under the prism of arguments from failure. Climate litigation is also portrayed as an area where the need for innovation often sustains expansive judicial activity. In the supranational domain, the focus is on the use of functional, “effet utile” doctrines, which have been so important to fortify the role of European Union law. In the international sphere, Hailbronner analyzes the Uniting for Peace Resolution of the UN General Assembly, issued in the 1950s before inoperativity of the Security Council.
The book offers a wonderful promenade across theoretical discussions, judicial doctrine, political events, and episodes of legal mobilization. The rich panorama of contemporary public law parades before our eyes. Yet, for me, its main contribution is clearly theoretical. The book demonstrates that it is possible to theorize and evaluate output-oriented public law, something crucial, in my opinion, in view of the turn constitutional and international studies have taken in recent times. In the last decades, we have evolved from an academy predominantly interested in the understanding of constitutional normativity/bindingness and, later on, in the tasks necessary to spell out the implications of constitutional substance (theories of interpretation, proportionality, etc.) to debates predominantly interested in impact and effects. In my view, this is a logical evolution: once the bindingness of constitutions (or treaties) and their standard normative implications became undisputed, it was just natural to ask what difference do these constitutions (and treaties) really make in society. A boom of scholarship focused on efficacy, implementation, enforcement, remedies, etcetera, then ensued, accompanied by a methodological turn towards interdisciplinarity that placed lawyers in dialogue with political and social scientists.
This book convincingly illustrates that law and legal theorization retain an important place in this output-oriented universe. It is an error to constrain constitutional theory to input-oriented debates examining who can legitimately do what, based on which law-related ingredients. Because the vast universe of constitutional implementation needs, yes, indicators, regressions, tables and figures, but also some analytic and evaluative order. Hailbronner provides instruments to that effect while claiming the effort as a genuinely legal one. She takes empirical scenarios and institutional outputs as centrally relevant in devising models of constitutional (public law) governance, yet dialogues with them under the guidance of a deontological frame—importantly influenced by political process theory. While the goals and motivations are different, her work shares space, for instance, with Mitch Berman’s theorization of constitutional decision-rules (identified as crucial yet generally overlooked inhabitants of the “constitutional implementation space”). They should be joined by many others.
The book is, concomitantly, a convincing vindication of comparative theory—i.e. of the fecundity of theorizing law against the background of comparative developments. The book actually deploys an exercise of Rawlsian “reflexive equilibrium” between the theoretical/conceptual proposal contained in Part I and the “case studies” analyzed in Parts II and III. This seems to me indeed the only sensible way to theorize, as opposed to the traditional practice of grounding theory on imagined abstractions and assumptions –a recipe for falling prey to problematic biases. This is the function of the comparative component of the book. If it was a “comparative law” book, we could question perhaps the selection of jurisdictions in Part II–very close, as the author acknowledges, to the habitual suspects covered by scholarship written in English. Yet they make for a perfectly relevant selection from the point of view of exploring structural adjudication under the theoretical prism that orients the research.
What is, in my view, the book’s main limitation? Well, the book theorizes scenarios and practices that, sadly enough, are now receding. Hailbronner theorizes a world where the problems derive from individual or collective disfunction (“what happens when those holding political power fail?”, p. 23) within a wider scenario that is not yet chaotic. She explores what to do in contexts where constitutional/supranational/international frameworks still have substantial integrity and still embody a shared project based on law, oriented by basic values, and supported on continuous interactions at the supra-state level. As we know, however, in times of autocratic legalism, constitutions are increasingly polluted by authoritarianism, illiberalism and all kinds of elements turning them into a battlefield, rather than a collaborative framework. Many constitutions have been politically weaponized in recent years (think of the Mexican one after the 2024/2025 reforms), multilateralism is at its lowest and international structures are weak, increasingly coopted or openly inoperant. In this context the sort of balanced distribution of governance powers and responsibilities Hailbronner so carefully outlines looks increasingly utopian.
We can only hope that the world will become soon saturated (and overdisgusted) with the experience of living at the impulse of public dynamics in whose context the membrane separating law from politics is paper thin or has entirely ripped. When law re-gains the role it deserves—as Owen Fiss would put it—carefully crafted (and morally and politically sensible) proposals like the ones contained in Hailbronner’s book will illuminate the way forward.
Arguments from Failure, Judicial Intervention and Democracy
[Editor’s note: this is the first of four posts commenting on Michaela Hailbronner’s new book, The Failures of Others: Justifying Institutional Expansion in Comparative Public and International Law (Cambridge University Press, 2025)].
Acting When Others Aren’t. Arguments from Failure in Comparative Public and International Law, by Michaela Hailbronner, is a very important work that updates and refines one of the most interesting discussions in contemporary constitutional theory. I am referring to the discussion on the role of institutions, and particularly the judicial branch, in times of constitutional erosion and democratic malfunctions (Dixon & Hailbronner 2021; Ginsburg & Huq 2018). The perspective adopted by the book is particularly interesting. This is so, on the one hand, because of the paradigm within which the work is framed -what Stephen Gardbaum has called “comparative political process theory” (CPPT) or Rosalind Dixon, similarly, named “Comparative representation-reinforcing theory” (CRRT) (see Ely 1980; Gardbaum 2020, 2020b; Dixon 2023; Gargarella 2020). On the other hand, and more specifically, the book’s approach is appealing, as it focuses on the analysis of “institutional failures” (which include, for instance, “state failure, dysfunction and state failure, dysfunction, and structural or systemic deficits”, p.3).
Within the tradition in which it is inscribed, Michaela’s book deserves a prominent place, first, for its clarity and depth. More significantly, her work stands out for being genuinely comparative: it is a book written by someone who looks at comparative law with curiosity and open questions, and not simply to reaffirm her own conclusions. Another important virtue of the book relates to the author’s “contextual” concerns, that is, her interest in thinking about legal problems, and their eventual answers or solutions, in relation to the particular place and time in which they emerge. Her contextual view, in addition, extends not only to the institutions of a (local) democracy as a whole, but also to the international sphere. And these merits are added to her valuable concern for appropriately calibrating (judicial) responses to the “failure of others”, for which she offers relevant metrics.
There would be much more to say about the merits and controversies raised by the book, but here, and given the limits of space, I will content myself with adding just a couple of observations. The first observation has to do with the place that his study reserves for judges. In that respect, I would say that, in general, but particularly in times of democratic erosion, one should not assume that the kinds of troubles in question (i.e., the capture of institutions by particular interests) affect all government institutions, but not, in principle, the judiciary. More specifically -one could claim- in an “eroded democracy,” the judiciary tends to become part of the problem that the theory needs to address. This is because, as history confirms, in contexts of “erosion,” political power is motivated to do everything possible to limit or colonize the actions of the courts. In sum, our starting point needs to be a judiciary that is probably affected, rather than free, from the institutional difficulties under examination.[1]
The other point I wanted to mention has to do with the normative basis of Michaela’s analysis, and in particular with the conception of democracy that seems to be present throughout her book. As I have tried to demonstrate in other works, a significant part of contemporary legal doctrine tends to conflate the questions of constitutionalism and democracy (Gargarella 2019, Gargarella 2022). As I see it, we currently face serious difficulties in both areas. On the one hand, we have problems of so-called “democratic erosion” although they actually refer to constitutional matters (concentration of power; abuses of authority; undermining of the power of oversight institutions). On the other hand, we have problems that are strictly democratic, linked (let’s say, for the moment) to a radical crisis in the representative system and, more generally, to the deterioration of the basic mechanisms of popular sovereignty (which include the reduction of democratic citizen participation to periodic voting). Both problems, which seriously undermine democratic constitutionalism, are very important, but the latter cannot be underestimated, much less ignored. And my impression is that Michaela’s book fundamentally neglects the democratic problem. Therefore, even if one day—miraculously—we could counteract present failures and restore the functioning of our institutions, on that day, our democratic problems would remain identical to those we suffer today. In short, I believe that her book should be reinforced, perhaps in the future, with a more detailed and in-depth analysis of democratic issues, which are as serious as, if not more serious than, the constitutional difficulties she analyzes in her current, excellent book.
Dixon, R. (2023), Responsive Judicial Review: Democracy and Dysfunction in the Modern Age, Oxford: Oxford University Press.
Dixon, R & Hailbronner, M. (2021), “Ely in the world: The global legacy of Democracy and Distrust forty years on,” I.CON, vol. 19, n. 2, 427-438.
Dixon, R and Landau, D. (2021), Abusive Constitutional Borrowing: Legal Globalization and the Subversion of Liberal Democracy, Oxford: Oxford University Press.
Ely, J. (1980), Democracy and Distrust, Harvard University Press.
Gardbaum, S. (2020), “Comparative Political Process Theory,” 18 I.CON 1429.
Gardbaum, S. (2020b), “Comparative Political Process Theory. A Rejoinder” 18 I.CON 1503.
Gargarella, R. (2022), The Law as a Conversation Among Equals, Cambridge: Cambridge University Press.
Gargarella, R. (2020), “From “Democracy and Distrust” to a Contextually Situated Dialogic Theory” I.CON, Volume 18, Issue 4, December 2020, 1466.
Gargarella, R. (2019), “Review of Tom Ginsburg and Aziz Huq, How to Save a Constitutional Democracy, University of Chicago Press, 2018” Revista Derecho del Estado (Universidad Externado, Colombia), n. 44, 397.
Gargarella, R. (2013), Latin American Constitutionalism, Oxford: Oxford University Press.
Ginsburg, T.; Huq, A. (2018), How to save a Constitutional Democracy, Chicago: The University of Chicago Press.
Hailbronner, M. (2025), Acting When Others Aren’t. Arguments from Failure in Comparative Public and International Law, Cambridge: Cambridge University Press.
[1] Rosalind Dixon raises a parallel concern, and aptly asks Michaela if judges “have the capacity to accurately assess the necessity of their own intervention…or are they prone to overestimating their own institutional significance, or efficacy, and hence their duty to intervene to correct other institutions’ failures” (Dixon 2025). My concern, however, goes beyond that observation, to also impact Rosalind’s own analysis. See Dixon 2023; Gargarella 2025).
Patriarchy, Women’s Rights, and the Future of Liberal Democracy: A Response to My Interlocutors
[[Editor’s note: this is the final post in the symposium on Gila Stopler’s new book, Women’s Rights in Liberal States: Patriarchy, Liberalism, Religion, and the Chimera of Rights (Cambridge University Press, 2025)].
I am immensely grateful to profs. Upham, Rimalt, Prieto-Rudolphy, Palazzo, and Mancini for their careful and thorough reading of my book and for their discerning and generous commentaries. I am also deeply grateful to the ASCL Blog for offering to host this symposium. For lack of space, I will not be able to discuss all the insightful remarks of my interlocutors except to thank them for their solid support for my thesis and for their detailed and illuminating perspectives. I will use the limited space I have to reply to one central critique raised by each of my interlocutors, after first laying out the relevant context of the book.
The book examines both conceptually and diachronically how patriarchy and patriarchal religion affect the rights of women and how they have been reflected in the liberal legal order in Western liberal states, with an emphasis on the USA. The argument is situated in the context of the recent democratic erosion occurring in many liberal democracies. I claim that weaknesses in liberal theory and practice, particularly the primacy of the public/private distinction, have facilitated the strengthening and re-politicization of patriarchal religion and the rise of right-wing populism, and that these jeopardize both the rights of women and the future of liberal democracies.
In the book, I point out that patriarchy is more than sexism; patriarchy is a fully-fledged political order, which was identified by Max Weber as the earliest and most basic form of political organization.[1] Filmer, in his work Patriarcha, defended the political right of kings to rule over their subjects based on the divinely ordained right of the father to rule over his sons.[2] While liberalism rejected the political aspects of Filmer’s patriarchal theory and adopted the social contract theory which views all men as entitled to political freedom and equality in the public sphere, it simultaneously maintained the patriarchal subjugation of women to men as natural and as belonging to the private non-political sphere.
I show in the book that the liberal assumption that it is possible to confine patriarchy, and the discrimination it involves, to the private sphere of religion and the family, is wrong. As a result, women’s rights have never been fully protected in liberal states, and more recently, patriarchal religious, nationalist, and populist ideologies that have flourished and gained power in the private sphere, have been taking over the public sphere and threatening the liberal democratic framework in many countries. In the book’s conclusion, I argue that extricating liberal democracy from its patriarchal roots entails replacing political liberalism with a substantive egalitarian liberalism that focuses heavily on the private as well as public sphere and requires the state to take active steps to remove all types of gendered power differentials that are supported and maintained by patriarchal liberalism in both spheres.
With this context in mind, I will now turn to respond to my interlocutors’ central comments.
Prof. Upham asks, “What about the men?”, referring to the damage patriarchy causes to men. He gives the example of Japanese men, whose rigid and endless work demands result in their complete absence from their children’s and family lives. I agree with Upham that patriarchy’s strict gender roles harm both women and men. If implemented, the obligation in The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) on states to take all appropriate measures to modify existing legislation, customs, practices, and social and cultural patterns of conduct that discriminate against women or that are based on the idea of the inferiority or superiority of one of the sexes, will correct patriarchy’s harm to women and men alike.[3] Many liberal democracies have made significant progress towards more egalitarian roles for both sexes in the labor market and at home. Unfortunately, as I discuss in the book, the embeddedness of patriarchy in liberal societies has enabled right-wing populists to enlist considerable support from men by committing to reverse this progress.[4] Gidron and Hall explain that white working-class male support for right-wing populism in liberal democracies stems from the relative decline in their social status vis- à-vis women due to gender equality legislation and economic and cultural developments. The loss of status is perceived by white working-class males as a crisis in masculinity and is weaponized by populists against the existing liberal democratic social order, fueling anti-democratic sentiments.[5] Homolar and Lofflmann argue that alongside ethnicity and nationality, populist masculine rhetoric “forms the core of the radicalizing playbook that helps turning individual grievances over frustrated desires and unmet expectations into a call to arms for political agents who promise alleviation and transformative change.”[6] Populist rhetoric represents men as emasculated victims of progressive change who have the right to demand redistributive justice, including through anger, vengeance, and violence.
In her commentary, Prof. Rimalt objects to my description of the religious forces that have been increasing their political influence in many liberal democracies as religious conservatives. She maintains that describing them as religious fundamentalists better captures the nature of the forces that are currently driving democratic backsliding and the unique threats they pose to liberal rights and gender equality. I agree with Rimalt that many of the conservative forces driving the democratic backsliding in liberal democracies can be considered religious fundamentalists. Nevertheless, I argue in the book that these forces also include religious nationalists and right-wing populists who are not necessarily deeply religious people that want to deepen the practice of religion in their private lives. Rather, they are religious conservatives who are dedicated to the mission of infusing Christianity (or their respective religion), including its morality and its traditional views of gender and the family, into the public sphere and the governing institutions in their country.[7]
Moreover, following Stoeckl, I argue that Rawls’ political liberalism hinges on the implicit assumption that there are only two kinds of religious doctrines – a small minority of fundamentalist doctrines which are unreasonable and are therefore shunned and cannot cause much harm, and all remaining religious doctrines which he designates as reasonable and implicitly assumes that they are all willing to adopt a liberal political conception of justice which treats all citizens as free and equal.[8] Stoeckl argues that the empirical study of religious actors reveals that there is a third group of religious actors which she calls “traditionalists”. Traditionalists are not fundamentalists, and therefore they are not shunned either by political liberalism or by society. However, at the same time, traditionalists are unwilling to adopt a liberal political conception of justice which treats all citizens as free and equal. Rather, they strategically use their extensive political power, both internally within states and internationally, to implement their illiberal ideology and change the consensus over the appropriate conception of justice in society.[9] In the book, I argue that it is the combined force of these extensive and ever growing religious, nationalist, and populist groups with overlapping agendas that leads the religious conservative attack on women’s rights and on liberal democracy.
As mentioned in several of the commentaries and in my response, the book engages and critiques Rawls’ political liberalism.[10] In her commentary, Prof. Prieto-Rudolphy wonders “to what extent we can blame Rawlsian liberalism, a highly idealized theory, for the flourishing of gendered beliefs in the private sphere when no society has ever perfectly embodied Rawlsian ideals.” My response, which I discuss extensively in the book, is that we can, and should, blame liberalism – with its emphasis on the public/private distinction and on shielding patriarchal religious doctrines from criticism – for the flourishing of gendered beliefs, and that Rawls’ political liberalism is no exception. In his book Political Liberalism, Rawls argues that political, rather than comprehensive, liberalism is the appropriate political theory for modern heterogeneous democratic societies in which a pluralism of incompatible yet reasonable comprehensive religious, philosophical, and moral doctrines exists.[11] Putting aside the question whether Rawls envisioned his political liberalism as ideal theory or as a blueprint for liberal societies, his theory fails even on its own terms. For example, as mentioned above, Rawls contends that “except for certain kinds of fundamentalism, all the main historical religions … may be seen as reasonable comprehensive doctrines.”[12] This means, as Okin points out, that Rawls considers religions that both preach and practice highly sexist modes of life as reasonable.[13]
Furthermore, as the discussion in the book shows, far from being perceived as ideal theory, variants of the political liberal constitutional framework suggested by Rawls can be found in most Western liberal democracies, and so can their precarious consequences. Rawls’ misguided assumption that citizens who adhere to non-liberal and illiberal comprehensive doctrines will simultaneously develop a genuine commitment to a liberal political conception of justice, on which he bases his entire theory, has been proven wrong by the success of right-wing populism in the new millennium. This success, which is based on the strength of pre-existing non-liberal and illiberal groups that rally behind right-wing populism, has exposed the frailness of the extant liberal political framework and the implausibility of its theoretical foundations.
While in her commentary, Prof. Palazzo is highly appreciative of the book’s analysis, she nevertheless worries that it “insufficiently reveals that law itself is not a neutral source of truth, but a contested space that can be mobilized by opposing political projects”. I fully agree with Palazzo that law is not a neutral source of truth, and I consider my book to be a feminist critical legal studies (FCLS) work, which exposes this fallacy. The book shows that far from being neutral, law in liberal democracies is inherently patriarchal, and legal concepts that are portrayed as neutral, such as the public-private distinction, carry very different consequences for women and men.
In response to my claim in the book that right-wing populism misappropriates human rights concepts and uses them against disempowered minorities such as women and other sexual minorities, Palazzo posits that if law is not neutral, then “debates about the “misappropriation” of human rights by right-wing populists appear less as conceptual distortions than as ordinary struggles over meaning within law.” I disagree. Recognizing that law is not neutral and that it is constantly being mobilized by opposing political projects does not mean that feminist legal theorists must relinquish the claim that some political projects distort the concept of “human rights” and its appropriate understanding in a liberal democracy. Quite to the contrary, recognizing that law is a political instrument that can, and often is, misused by the powerful against the powerless makes the struggle over the appropriate meaning of legal concepts such as human rights even more urgent.
Finally, Prof. Mancini argues in her commentary that while my analysis is largely persuasive, a comparative perspective reveals important regional variation. She points to the jurisprudence of the European Court of Human Rights (ECtHR) as reflecting a more nuanced approach when balancing between demands for religiously motivated exemptions and sexual and reproductive rights. I agree with Mancini that the ECtHR remains more protective of the rights of women and sexual minorities than the American Supreme Court. This is in large part because the ECtHR has not yet been captured by right-wing populist forces, while, as I discuss in the book, the capture of the American Supreme Court was completed by the end of President Trump’s first term, with the unprecedented appointment of Supreme Court Justice Amy Coney-Barret, eight days before the 2020 presidential elections. In Reva Siegel’s words: “The Republican Party engaged in norm-busting appointments politics to produce the Supreme Court that decided the Dobbs case.”[14]
The comparison between the ECtHR and the American Supreme Court demonstrates the danger that I discuss in the book of the reinstitution of religious patriarchy as a political rule. With its jurisprudence giving countries a wide margin of appreciation in sensitive issues such as reproductive rights, the ECtHR has succeeded in maintaining a patriarchal liberal status quo. Nevertheless, despite the Court’s relatively progressive rulings, this status quo has, among other things, led it to refuse to recognize women’s right to abortion.[15] This strategy may end up backfiring as more countries in the EU are taken over by right-wing populists that dismantle the liberal democratic constitutional framework in their countries and establish patrimonial states where religious patriarchal rules apply in both the public and private spheres. The shift in the balance of power in the EU towards these states may enable them to capture the ECtHR and reverse the gains in women’s and sexual minorities’ rights, much like what has happened in the USA.[16]
I want to thank Profs. Upham, Rimalt, Prieto-Rudolphy, Palazzo, and Mancini again for their illuminating commentaries and conclude by reiterating the crux of my argument in the book. The rise of right-wing populism and politicized conservative religion, and their joint attack on the liberal state, have shown that what stands at the core of the current struggle is not only the excessive power of patriarchy in the private sphere but a concerted attempt by different patriarchal ideologies to carry out a patriarchal overhaul of the public sphere and state structure towards the establishment of a patrimonial state. s I argue in the book, feminism has been right all along. The personal is indeed at the very heart of the political, and patriarchy is a threat in both spheres, not just for women, but for the future of liberal democracy. Liberal democracies that continue to ignore this reality do so at their own peril.
[1] Julia Adams, The Rule of the Father, Patriarchy and Patrimonialism in Early Modern Europe, in Max Weber’s Economy and Society: A Critical Companion 237, 238-239 (Charles Camic, Philip S. Gorski, and David M. Trubek eds.)
[2] Robert Filmer, “Patriarcha” and Other Writings 1–68 (Cambridge University Press 1991)
[3] Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S 13. See discussion of the convention in ch. 2. sec. 5 of the book.
[5] Noam Gidron and Peter A. Hall, The politics of social status: economic and cultural roots of the populist right, 68(1) The British Journal of Sociology s57 (2017)
[6] Alexandra Homolar and Georg Löfflmann, Weaponizing Masculinity: Populism and Gendered Stories of Victimhood, 16(2) Journal for the Study of Radicalism, 131, 132 (2022)
[7] Andrew L. Whitehead & Samuel L. Perry, Taking America Back for God: Christian Nationalism in the United States 149-150, 152 (Oxford University Press, 2020)
[8] Kristina Stoeckl, ‘Political Liberalism and Religious Claims: Four Blind Spots’ 43(1) Philosophy and Social Criticism 34, at 35-38 (2017)
[9]See my discussion of Christian nationalists in the USA and Religious Zionists in Israel as traditionalists in ch. 5
[10]See especially ch. 2 sec. 2 & 3, ch. 6 sec. 2, and Conclusion
[11] John Rawls, Political Liberalism, xviii (Columbia Univ. Press 1993).
[13] Susan Moller Okin, Justice and Gender: An Unfinished Debate, 72 Fordham L. Rev. 1537, 1556 (2004).
[14] Reva B. Siegel, Memory Games: Dobbs’s Originalism as Anti-Democratic Living Constitutionalism – and Some Pathways for Resistance, 101 Tex. L. Rev. 1127, 1176 (2023). See my discussion in ch. 6.
[15] Most recently repeated in ECtHR 13 November 2025, Application no. 6030/21, A.R. v. Poland, sec. 104
[16] For a similar concern see Ruth Rubio-Marin, Anti Gender Constitutionalism, 21 European Const. L. Rev., 37, 53-53 (2025)
The Cost of Conscience: Religious Exemptions and the Erosion of Women’s Rights
[Editor’s note: this is the fifth of six posts commenting on Gila Stopler’s new book, Women’s Rights in Liberal States: Patriarchy, Liberalism, Religion, and the Chimera of Rights (Cambridge University Press, 2025)].
In Women’s Rights in Liberal States: Patriarchy, Liberalism, Religion and the Chimera of Rights, Gila Stopler offers a powerful feminist critique of liberal democracy by exposing how women’s rights are structurally undermined through the liberal state’s accommodation of majority religions. Her central claim is that religion functions as a deeply patriarchal institution whose authority is preserved—and constitutionally legitimized—by liberalism’s commitments to toleration, religious freedom, and the public–private divide. Rather than operating as a neutral framework, liberal constitutionalism enables the erosion of women’s rights from within the legal order by insulating religious practices from democratic scrutiny.
Stopler challenges the conventional Enlightenment narrative that portrays secularism as an emancipatory force that confined religion to the private sphere and thereby facilitated women’s liberation from religious authority. Drawing on feminist critiques of the social contract[1], she demonstrates that the designation of certain domains as “private” does not signify a withdrawal of power, but rather a mode of its reconfiguration and concealment. Within this framework, religion occupies a uniquely privileged position. Its ostensible privatization shields religious norms from democratic contestation while simultaneously allowing them to regulate gender relations, family structures, sexuality, and reproduction. Far from being politically neutral, the private sphere becomes a site in which patriarchal power is entrenched and normalized.
Crucially, moreover, Stopler shows that the liberal insistence on treating religion as private obscures the extent to which religious patriarchy extends well beyond the private sphere and profoundly shapes public life. One of the most significant mechanisms through which this occurs is the proliferation of religiously based exemptions from generally applicable laws. Across the United States, Europe, and Israel, claims for exemptions increasingly target women’s reproductive rights and the rights of sexual minorities—domains that, as Stopler observes, are central to the patriarchal sexual order and its linkage of sex, marriage, and gender hierarchy. In Israel, these dynamics are further intensified by conflicts over women’s presence in the public sphere itself, including practices of gender segregation and exclusion that restrict women’s freedom of movement and participation.
Stopler’s comparative analysis reveals striking similarities between constitutional systems that are often regarded as fundamentally different in their approach to religion–state relations. The United States, frequently idealized as a bastion of secularism, and Israel, which lacks a formal separation between law and religion, both exhibit a growing willingness to accommodate religious claims at the expense of women’s equality. This convergence underscores Stopler’s broader claim that the problem lies not in the absence of secularism, but in liberalism’s structural deference to religion as a protected sphere of authority.
Judicial decisions such as Burwell v. Hobby Lobby exemplify this tendency. In that case, the U.S. Supreme Court held that for-profit corporations controlled by religious owners could be exempted from providing contraceptive coverage mandated by law, on the ground that compliance would burden the owners’ religious freedom[2]. As Stopler argues, this reasoning is emblematic of a broader transformation in the concept of conscientious objection. Traditionally understood as a limited protective mechanism for marginal individuals holding exceptional beliefs—such as pacifists—conscientious objection has evolved into a collective, politically mobilized strategy aimed at undermining the general applicability of secular law. These claims increasingly amount to “jurisdictional objections” that challenge the state’s authority to regulate domains claimed by religion[3].
The cumulative effect of religious exemptions is the hollowing out of women’s rights without their formal repeal. Equality remains enshrined in constitutional texts, yet its realization becomes contingent and uneven, producing parallel legal regimes in which women disproportionately bear the costs of accommodation.
While Stopler’s analysis is largely persuasive, a comparative perspective reveals important regional variation. Europe, though not immune to the proliferation of conscientious objection claims, has demonstrated a relatively greater capacity to resist their corrosive effects. The jurisprudence of the European Court of Human Rights (ECtHR) reflects a nuanced approach that distinguishes between the protection of minority conscience and the accommodation of claims that undermine the rights of others. In Bayatyan v. Armenia, the Court robustly protected individual conscientious objection to military service under Article 9 of the EctHR[4]. By contrast, when religiously motivated exemptions have been invoked in the fields of sexual and reproductive rights, the Court has adopted a markedly more cautious stance, not privileging Christian majorities. In Ladele, the ECtHR upheld the dismissal of a registrar who refused to register same-sex unions on religious grounds, finding no violation of Article 9 and emphasizing the state’s duty to protect the rights of same-sex couples[5]. Similarly, in cases involving pharmacists who refused to dispense contraceptives, the Court held that freedom of religion does not entail an unconditional right to act in accordance with religious beliefs within the professional sphere[6]. The Court’s conclusion that the failure to provide for a right to conscientious objection does not constitute a violation of Article 9, if motivated by the protection of the right to health, further underscores its prioritization of women’s rights over claims of conscience[7].
Europe’s relative success in containing the assault of patriarchal religion on women’s rights can be attributed to the existence of common standards and the institutional role of the ECHR as a shared normative framework. Yet Stopler offers a sobering warning about the rise of illiberalism and populism and their strategic mobilization of religion. Across liberal democracies, religion is increasingly deployed within populist projects that frame gender equality as elitist, undemocratic, or culturally alien. Anti-gender discourse has emerged as a powerful unifying force—a “symbolic glue” that binds heterogeneous illiberal actors through a shared opposition to feminism, sexual minorities, and liberal human rights[8].
Within these discourses, gender becomes a proxy battleground for broader critiques of liberal democracy and globalization. Populist rhetoric relies on binary logics and moral panic, naturalizing gender hierarchy and sacralizing “the people” as a homogenous moral subject under threat from feminists and sexual minorities. In this context, rights themselves are appropriated and re-signified, stripped of their emancipatory content and redeployed to legitimate exclusion and inequality[9].
Ultimately, Stopler’s critique of the public–private divide exposes a foundational contradiction within liberalism. A state that claims neutrality toward religion cannot simultaneously guarantee women’s equality when religious institutions exercise entrenched patriarchal power. Her intervention calls for a feminist rethinking of toleration: without confronting religion as a patriarchal, public and political force, liberal democracies will continue to erode women’s rights in the name of religious freedom.
[1] C. Pateman, The Sexual Contract, Stanford University Press, 1988.
[2] Supreme Court of the United States, Burwell v. Hobby LobbyStores, Inc., 573 U.S. 682 (2014).
[3] S. Mancini, “Global Religion in a Post-Westphalia World”, in A. F. Lang, A. Wiener, Handbook on Global Constitutionalism, Edwar Elgar Publishing Limited, 2023: 556 – 567
[4] ECtHR 7 July 2011, Application no. 23549/03, Bayatyan v. Armenia.
[5] ECtHR 15 January 2013, Application nos. 48420/10, 59842/10, 51671/10 and 36516/10, Eweida and Others v.
the United Kingdom.
[6] ECtHR admissibility decision 2 October 2001, Application no. 49853/99, Pichon and Sajous v. France.
[7] ECtHR 11 February 2020, Application no. 43726/17, Ellinor Grimmark v. Sweden; ECtHR 11 February 2020, Application no. 62309/17, Linda Steen v. Sweden.
[8] W. Grzebalska, E. Kováts, A. Pető, Gender as Symbolic Glue: How ‘Gender’ Became an Umbrella Term for the Rejection of the (Neo)Liberal Order, in Breaking Feminism. LUX, 2018: 32-38.
[9] S. Mancini, M. Rosenfeld, Politicized Religion and the Reframing of Fundamental Rights, Oxford University Press, 2026.
The Politics of the Sacred: Women’s Rights at the Limits of Political Liberalism
[Editor’s note: this is the fourth of six posts commenting on Gila Stopler’s new book, Women’s Rights in Liberal States: Patriarchy, Liberalism, Religion, and the Chimera of Rights (Cambridge University Press, 2025)].
Gila Stopler’s Women’s Rights in Liberal States: Patriarchy, Liberalism, Religion and the Chimera of Rights offers a powerful analysis of the relationship between patriarchy, religion, and political liberalism, and of the enduring harm this relationship has caused to women. The book shows how liberal states have failed women not despite, but often because of, the legal doctrines and normative assumptions that are meant to protect religious freedom.
At the heart of Stopler’s analysis lies a sustained critique of the public–private distinction. Liberal theory has long treated the private sphere as non-political, natural, and pre-social. This assumption, Stopler convincingly argues, has allowed illiberal doctrines to develop beyond the reach of constitutional scrutiny. Patriarchal subordination was normalized and shielded precisely because it took place in spaces labeled “private” and therefore insulated from political intervention.
Stopler’s central insight is that this separation has now reached a point of collapse. Illiberal doctrines that were cultivated in the private sphere have moved back into the public arena, supported by the growing influence of strong religions over lawmaking, education, welfare provision, and social services. The rise of right-wing populism marks the definitive erosion of the public–private divide and poses a direct challenge not only to women’s rights but also to liberal democracy itself. In this sense, the book is not only about gender equality; it is also a diagnosis of liberalism’s structural weakness. Stopler’s attention to the fragility of liberal democracy—its limited capacity to resist illiberalism even under well-designed constitutional frameworks—is particularly welcome, as it confronts a major obstacle to the reception of her proposal: the fact that positions of power remain overwhelmingly male-dominated, reflecting centuries of entrenched patriarchy.
The book is meticulously researched, theoretically grounded, and intellectually honest. It traces the history of the public–private distinction through historical, legal, and political thought, including the work of liberal theorists such as Rawls, whose defense of state neutrality toward competing conceptions of the good helped reinforce the idea that religious doctrine lies beyond the reach of public reason.
One of the book’s most valuable analytical contributions is its taxonomy of state approaches to religion, which distinguishes between privatization, authorization, and nationalization. Stopler’s proposal of “soft nationalization” of religion—where the state intervenes to protect vulnerable parties without imposing religious doctrine—is both careful and persuasive. Religion is not treated as a monolith: Stopler differentiates between “strong” or conservative forms of religion and more plural, progressive practices, leaving room for internal critique and reform. This approach aligns with post-structuralist accounts of religion as dynamic and internally diverse, while avoiding the tendency to demonize religion as such.
At a deeper level, the book shows how a strong intuition—one grounded in lived, bodily, and relational experience—can be translated into a rigorous legal analysis and a concrete normative proposal. Stopler’s legal training provides the backbone to articulate this intuition within law’s language and institutional limits. At the same time, the analysis insufficiently reveals that law itself is not a neutral source of truth, but a contested space that can be mobilized by opposing political projects. Seen in this light, debates about the “misappropriation” of human rights by right-wing populists appear less as conceptual distortions than as ordinary struggles over meaning within law. What matters, ultimately, is not which faction temporarily succeeds, but the direction in which legal reform is steered. Stopler’s own direction is guided by an intuition rooted in bodily knowledge, historical awareness, and women’s lived experience. The book’s greatest merit lies in its recognition, supported by extensive legal and historical evidence, that women have suffered profound harm from conservative religion, and above all from their exclusion from the sacred.
The book’s introduction identifies what I would describe as the original sin of Western patriarchy: spirituality got lost in translation into institutionalized religion. A certain religious discourse has repeatedly been used to project trauma and justify violence, as illustrated by contemporary judicial invocations of divine wrath to deny women access to abortion (see the Chief Justice of the Alabama Supreme Court’s reference to the “wrath of a holy God” in Burdick v. Aysenne). Stopler’s account of the emergence of a singular male god and the displacement of earlier mother-goddess traditions exposes the deep symbolic foundations of women’s exclusion. It is increasingly clear that Western religions reflect a distorted form of spirituality, particularly evident in the systematic marginalization of the feminine.
What is ultimately at stake is women’s exclusion from meaning-making itself. Religion and culture are saturated with norms that regulate not only behavior but also emotions and desires (p. 24). By excluding women from the sacred, patriarchal religion removed them from the processes through which truth, value, and moral obligation are defined. This explains why intervention in the so-called private sphere is indispensable, and why attention must be paid to religious language, imagery, everyday practices, and the formation of meaning and feeling (p. 27), since these become self-limiting norms that foster control without our realizing we are being controlled.
From the abolition of pagan priesthoods under Theodosius in 391–392 CE, to Pauline and Augustinian prohibitions on women speaking in assemblies, to the persecution of women as witches, Christianity in the West systematically severed women’s access to the sacred. As recent scholarship has shown, including Ilenia Ruggio’s work on constitutional identity and women’s exclusion from the priesthood, this legacy has never been fully overcome and continues to shape contemporary constitutional orders.
Why does this matter today? Don’t we have more pressing problems, one could argue? Because doctrines grounded in the denial of bodily truth—especially the denial of women’s role in creating life, which is framed as a punishment for tempting Adam to sin—have severed women from one of the most important dimensions: that of the sacred. Today, the distancing from bodily experience that characterizes patriarchal religion interacts with other forms of alienation, disembodiment, and social fragmentation, a process intensified by technological developments that weaken embodied and relational knowledge. Together, these dynamics contribute to a “shrinking” of humanity, driven by separation from nature, from other human beings, and—most critically—from the wisdom carried in our own bodies. Stopler’s book helps clarify how religious patriarchy has served as both a driver and a justification for this ongoing process of bodily truth replacement, a problem that is doomed to become increasingly acute.
Walking through the ancient library of the University of Coimbra, a space once reserved exclusively for men, I could not help feeling the accumulated weight of this exclusion. Stopler’s work gives conceptual clarity to that historical experience and traces its legal afterlives. She shows how contemporary abortion rulings, restrictions on women’s access to religious authority, and laws that openly subordinate women in the name of religion are not anomalies, but predictable outcomes of a misplaced commitment to a fictive and porous public–private divide.
The private is political. And, as Stopler’s book compellingly demonstrates, the most intimate core of the private—the sacred—is political as well.
Feminism, Liberalism, and Religion
[Editor’s note: this is the third of six posts commenting on Gila Stopler’s new book, Women’s Rights in Liberal States: Patriarchy, Liberalism, Religion, and the Chimera of Rights (Cambridge University Press, 2025)].
In Women’s Rights in Liberal States. Patriarchy, Liberalism, Religion and the Chimera of Rights, Gila Stopler discusses the global rise of religious and far right-wing movements, pointing out an unlikely (but not exclusive) culprit: liberalism, or the liberal state, which has let patriarchal beliefs flourish, unchallenged, in the private sphere.
Dean Stopler’s book is incredibly timely and will become mandatory reading for anyone interested in the complicated relationship between populism, the patriarchy, religious beliefs, and liberalism. The book also provides a thorough discussion of recent developments in Israel and the United States pertaining to women’s rights and the rise of far-right movements, while skillfully acknowledging the relevant differences between the two countries, both in their political systems and their approach to religion.
The private sphere has been of concern to feminists for a long time. It is within the intimate setting of the family where patriarchal social norms are first encountered, to be learned, internalized, and, eventually, reproduced. The same is largely true of religious beliefs: they are often learned and internalized within the private sphere. But many religions (and, thus, religious beliefs) are, as Stopler notes, “patriarchal,” that is, they are premised on a gendered worldview, whereby men are women are not equal or are formally equal but destined to fulfil different (gendered) roles. When these religious beliefs are left to flourish in the private sphere they eventually seep into the public sphere and start eroding women’s rights and, even, democracy.
These beliefs, Stopler contends, should be understood as unreasonable comprehensive doctrines under a Rawlsian framework. Like “war and disease,” they should be contained. As a result, Stopler is in favor of some degree of state intervention in patriarchal religions, at least at the level of religious organizations. However, she sets the limit at intimate relationships: while the state can intervene to prevent gender-based discrimination in private organizations, including religious ones, it cannot legitimately do so within intimate relationships.
Stopler’s is a thoughtful and thought-provoking argument. It connects important strands of feminist theory with Ralwsian liberalism, while challenging some key assumptions about the place and limits of religion within the latter. And it does so by connecting what could be an entirely theoretical discussion with a context-sensitive treatment of an important global trend: the rise of the far-right and the related erosion of gender-based rights in the United States and Israel.
Stopler’s book is, in that way, wonderfully ambitious—and it delivers. Of course, those more inclined towards the theoretical dimensions of Stopler’s argument will perhaps miss a more thorough treatment of Rawlsian neutrality and whether the latter is compatible with Stopler’s preferred solution, which requires state intervention in religious organizations. One might also wonder to what extent we can blame Rawlsian liberalism, a highly idealized theory, for the flourishing of gendered beliefs in the private sphere when no society has ever perfectly embodied Rawlsian ideals.
Those more inclined towards the comparative dimensions of Stopler’s argument might wonder to what extent different constitutional frameworks can accommodate Stopler’s preferred solution and what factors, in addition to the avowed neutrality of the liberal state, can contribute to explaining the current gender-backlash and its appeal. Indeed, young men tilt more and more conservative in several countries, further apart from women than they were before; social media is ripe with misogynistic content; and anti-trans legislation and sentiment is flourishing in many parts of the world. Furthermore, an intersectional analysis of this gender backlash would, perhaps, reveal its ethnic and racial dimensions, tightly linked to anti-immigration sentiments and the nostalgic desire for an ethno-state, both key to the far right’s ideology.
The fact that Stopler does not devote as much time to these issues should not be seen as a shortcoming in what is already a formidable book. On the contrary, Stopler’s work also succeeds in showing how important it is to pay attention to misogyny in the private sphere and how fragile gender equality in the liberal state is. It is up to future work in the area to start answering the questions that Stopler’s work raises but does not yet answer.
Women’s Rights, the Rise of Religious Fundamentalism and the Misappropriation of Feminism
[Editor’s note: this is the second of six posts commenting on Gila Stopler’s new book, Women’s Rights in Liberal States: Patriarchy, Liberalism, Religion, and the Chimera of Rights (Cambridge University Press, 2025)].
Gila Stopler wrote a thought-provoking book that exposes the deep embeddedness of patriarchy in liberalism, populism, and conservatism, as well as in religion and culture. The book aims to deepen our understanding of the weakness of women’s rights in Western liberal democracies and to uncover the underlying connections between this weakness and the success of religious nationalism and right-wing populism in these societies.
I agree with much of what Prof. Stopler argues. Indeed, to understand current regression in women’s rights in Western countries such as the United States or Israel, it is crucial to highlight the enduring power of patriarchy in liberal societies and how it is used by right-wing populists and religious conservatives to advance their own cause, to restrict the rights of women, and to endanger the future of liberal democracy itself. Hence, in this commentary I seek to supplement and strengthen Prof. Stolper’s central claims by adding three additional perspectives to the discussion on the relationship between religion, liberalism, and patriarchy.
My first comment is conceptual. Throughout the book, Prof. Stopler refers to the rise of religious conservatism, adopting a term widely used in current scholarship to describe the type of religious forces that have gained growing political influence in many liberal democracies and primarily the United States. I would suggest replacing the term religious conservatives with religious fundamentalists, as the latter better captures not only the nature of the forces that are currently driving democratic backsliding but also the unique threats they pose to liberal rights and gender equality.
Religious fundamentalism involves a strict, literal interpretation of sacred texts and a belief in their absolute, unalterable truth. It often leads to dogmatism and extreme intolerance toward opposing viewpoints, which are seen as threats to “the truth.” For fundamentalists, their religion is beyond any form of criticism and must therefore be imposed upon others. Conservatism, by contrast, while often socially traditional and cautious about rapid change, is a broader political and social philosophy. It values inherited traditions and institutions without necessarily requiring literal interpretations of religious doctrine or a total rejection of modernity. The key distinction is that fundamentalism represents a more extreme, dogmatic, and militant subset of religiosity – one that cannot be equated with conservatism as a whole.
Justice Alito and Justice Thomas of the U.S. Supreme Court, for example, are not religious conservatives – they are religious fundamentalists. This more precise classification better illuminates their judicial reasoning and explains the often extreme and violent implications of their decisions. Alito’s majority opinion in Dobbs[1] is not merely a rejection of precedent; it is also a text that disregards the devastating real-world consequences of abortion bans for women’s lives and denies that such consequences should matter to the courts, even when they cause immense suffering. Similarly, Justice Thomas’s opinion in Bruen[2] – the case striking down New York’s requirement that individuals show “proper cause” to carry a concealed handgun in public – reveals a similar indifference to the human cost, disregarding the decision’s consequences for escalating gun violence and mass shootings, as well as its impact on ordinary people’s fundamental right to life.
The proposed focus on ‘religious fundamentalism’ as a distinct form of ‘religious conservatism’ also illuminates the nature of the ultimate project that these religious forces seek to advance, bringing me to my second comment.
In her book, professor Stopler rightly emphasizes that at the heart of the struggle waged by religious forces in liberal democracies lies not only the preservation of patriarchal power in the private sphere but also the patriarchal restructuring of the public sphere and the creation of a patrimonial state. I wish to reinforce this insight by suggesting that the precise objective of religious fundamentalist forces is to elevate “religious liberty” to the status of a super-right – one whose protection is prioritized above and beyond other fundamental rights. Crucially, the goal is not to protect the religious liberty of all religious views, but rather to enable the establishment of a single, fundamentalist version of religion as the primary regulator of the public sphere. This underscores the true essence of the fundamentalist project, exemplified by U.S. Supreme Court Justices such as Thomas and Alito: it is a reactionary enterprise aimed at undermining the existing constitutional order and replacing it with a new one – an order in which the Anti-Establishment Clause becomes increasingly irrelevant, and fundamentalist interpretations of Christianity emerge as a dominant force in shaping public life.
A recent article by Adam Hamdan[3] illustrates how these trends manifest in the Court’s jurisprudence. The article offers a statistical analysis of the role of religion in Supreme Court decisions. Hamdan finds that under the Roberts Court, the Supreme Court has ruled in favor of religious groups, especially Christian groups, more frequently than its predecessors. The Roberts Court has also taken up a greater number of Free Exercise Clause cases and issued consequential rulings on religious liberty at a significantly higher rate than earlier courts. Notably, Hamdan reports that in two-thirds of cases involving Christian groups, those groups prevailed, underscoring how the Court’s rulings actively assist in, and align with, efforts to impose a Christian nationalist worldview on the American public, practically erasing the Anti- Establishment clause.
Finally, we cannot discuss the current regression in gender equality without critically acknowledging the misuse of the term feminism and its strategic adoption by ultra-conservative and populist forces. These actors are actively undermining the feminist agenda and the struggle for gender equality by reframing feminism as a patriarchal concept. Their primary tool in this effort is the promotion of what they present as a new strain of feminism: “conservative feminism”, positioned as a declared corrective to the alleged failures of liberal feminism.
A revealing example comes from a recent episode of Ross Douthat’s podcast Interesting Times. Douthat is a conservative Catholic commentator whose new show, sponsored by The New York Times, aims to explore the New Right and other contemporary political realignments. In this recent episode he hosted two women described as ‘theorists’ to discuss the following question: “Did liberal feminism ruin the workplace, and is there a conservative feminism that can correct its mistakes?”[4] His first guest, Helen Andrews, recently published an essay titled “The Great Feminization,” in which she argues that women’s large-scale entry into the workforce has “feminized” numerous professions. According to Andrews, this shift endangers the labor market because women’s supposed prioritization of “empathy over rationality, safety over risk, and cohesion over competition” ultimately weakens institutions and professional standards. The second guest, Leah Libresco Sargeant, has recently published a book titled The Dignity of Dependence: A Feminist Manifesto. Under the guise of a new strain of feminism and as part of the slogan “advocating for women as women”, she calls for celebrating women’s distinct care-related and compassionate qualities that she ties to their biology or more precisely to their ability to become pregnant. Although Libresco Sargeant rejects Andrews’s assertion that feminine traits are inherently inferior to masculine ones, she nonetheless advances a similarly essentialist rhetoric that reduces women’s nature to innate caregiving and reproductive capacities, thereby echoing patriarchal stereotypes of women.
Historically, patriarchal structures sought to undermine feminist ideas by associating feminism with negative stereotypes such as militancy, radicalism, misandry, and the rejection of femininity. What we are witnessing today is a far more sophisticated campaign: feminism has been seized by populist and religious fundamentalist actors who redefine it as a sexist ideology that affirms, rather than challenges, patriarchal norms. So, following Prof. Stolper’s important book and as we chart the various threats to gender equality in this era of democratic backsliding, rising populism, and religious fundamentalism, we must recognize that the hostile takeover of feminism itself is an additional aspect of the contemporary assault on gender equality.
[1]Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022).
[2]New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022).
[3] Adam Hamdan, Rule for Thee but not for Me: From Roberts to Vinson, a Statistical Analysis of the Role of Religion in the Supreme Court, Cambridge Journal of Political Affairs Vol. 6(1) 178-199 (2025)
[Editor’s note: this is the first of six posts commenting on Gila Stopler’s new book, Women’s Rights in Liberal States: Patriarchy, Liberalism, Religion and the Chimera of Rights, Cambridge University Press, 2025].
Dean Stopler has written a penetrating and persuasive account of the position of women in liberal democracies, specifically, although not exclusively, the United States. She characterizes liberal societies as patriarchal, meaning that the societies are organized, managed, and dominated by men to the detriment of women. I largely agree, but have one complicating narrative from outside the Western societies that form the basis of Stopler’s argument. Before I give my perspective, however, some background on the book is necessary.
To simplify an empirically rich and absorbing account of patriarchy in Western society, Stopler begins with the historical, social, and ideological foundations of gender discrimination. Although religion may have initially included worship of a Mother-Goddess, e.g., Amaterasu in Japan, the emergence of archaic states brought monotheism and, over the centuries, an elaborate ideological, religious, and social structure entrenching patriarchy based on a single male god. While male dominance of the contemporary world is hardly a novel idea, Stopler broadens and deepens that analysis by focusing on gender discrimination in precisely that portion of the world that often compliments itself on countering that dominance, the liberal democratic West.
As the title indicates, the self-congratulatory rhetoric of democratic liberalism masks, if not reinforces and perpetuates, a patriarchic structure that keeps both genders in their unequal relative positions. Stopler does not resort to dramatic or rhetorical reference to time-worn, if accurate, generalizations, but painstakingly demonstrates how patriarchy is reconstructed in contemporary Western democracies with reference to and analysis of phenomena like the transformation of the US Supreme Court and decisions like Dobbs eliminating the national right to abortion.
In doing so, she recounts the transformation of liberalism’s celebration of individual human rights from an emancipatory call to gender equality into a vehicle for the re-establishment of male control of women, particularly married women, all with the passive involvement, if not approval, of leading liberal ideologues like John Rawls and in contravention of international covenants like CEDAW [the Convention on the Elimination of all Forms of Discrimination Against Women]. For Stopler, the vehicle for this transformation is the pre-occupation with and faith in the public/private distinction and its insulation of the patriarchal structure of human relationships, especially but not exclusively in families.
Stopler is persuasive, and I agree that contemporary political, religious, and ideological trends, at least in the United States, support her claims. For this reviewer, however, she neglects a perspective that would significantly complicate the relative status of men and women in contemporary affluent democracies. The missing perspective is that of non-dominant men, by which I mean 80 to 90% of the male population. To illustrate my argument I will recount the social and economic position of Japanese men in a Tokyo suburb of 30+ years ago. To make explicit what will be obvious, I am recounting a personal experience. I make no empirical claim either that the situation I describe was universal in Japan at that time or that it represents the situation in other circumstances and societies. That said, I believe that my reflections present a viewpoint that is often neglected in discussions of gender relationships in rich, capitalist societies like the US, Western Europe, and Northeast Asia.
At the end of the last century I lived with my family in a middle to upper-middle class suburb of Tokyo. The area was entirely Japanese (with perhaps assimilated Korean citizens), i.e., there was no significant population of foreigners other than the four of us. Our daughter was beginning kindergarten and we enrolled her in the local nursery school. Each morning and afternoon either my wife or I delivered and picked her up at the appropriate time. During that year, my wife made lifelong friends among the mothers of our daughter’s friends. I never met – literally never saw – a father. The mothers were at home; the fathers left home for work before the children went to school and returned after the rest of the family had eaten dinner and, often, gone to bed. The fathers not only worked on Saturdays but also frequently had to socialize with colleagues in the evening. My wife has maintained her relationships with her friends from that period over the course of several subsequent stays in Tokyo. The first and only time I met a father was when one accompanied his family to New York on vacation.
To step back from the personal to state the obvious: the mothers managed the home and childcare and had no chance for any life other than that of mother and housekeeper. While it is important to note that occupational opportunities increased after the children had reached adolescence, the chance to pursue a profession or conventional management career was non-existent. Meanwhile, the husbands/fathers were working intensively. In other words, the relative gender roles were consistent with the patriarchic society described by Stopler.
What is missing, however, in my experience and in many accounts of patriarchy is what happened to the men. A tiny percentage became patriarchs, designing, creating, and presiding over the liberal Japanese society of the period. The rest became employees. They did not rule the world; they served others. Like the women, they were denied professional fulfillment, unless they enjoyed going out drinking and making small talk with bar hostesses with their bosses or being assigned for months at a time to market research while living in a business hotel in, e.g., Hungary or Argentina. Unlike their wives, however, they were also denied to a non-trivial extent the joy of parenthood. In a word, they were oppressed. At that time living in Tokyo, I felt sorrier for the fathers than for the mothers.
Two important qualifications must made. First, the above account is out of date. A recent return visit to our daughter’s nursery school confirmed what my wife and I had expected: there are now lots of fathers bringing and picking up their kids. On a grander scale, although the political role of women generally remains relatively low in Japan, the current Prime Minister and, perhaps more significant, the current Minister of Finance are women. Second, Japan and the Japanese gender situation are unique, just as are the equivalent situations of Germany, the US, and every other society. Thirdly and most important, my family’s experience does not contradict Stopler’s central argument about patriarchy, especially in the family. What I hope my reflections do contribute, however, is an additional perspective on the costs of patriarchy: what it means for non-dominant men and especially for fathers. To state the obvious: the preclusion by gender discrimination of free choice of how to structure one’s life has social and personal costs that extend even further than those described in Women’s Rights in Liberal States.
Comparison in the Context of Legality Difference: A Response to My Interlocutors
[Editor’s note: This is the final of four posts on Aaron Mills’s article “First Nations’ Citizenship and Kinship Compared: Belonging’s Stake in Legality”, The American Journal of Comparative Law, Volume 72, Issue 4, Winter 2024, Pages 892–932, https://doi.org/10.1093/ajcl/avae032]
I am tremendously fortunate to have Matthew L.M. Fletcher, James Whitman, and Will Kymlicka respond to my article.[1] Their replies are a model of thoughtfulness and charitableness. Especially as an Assistant Professor, I am grateful, also, for the distinct challenges they present, which do honour to my argument. Finally, I am appreciative that their interdisciplinary questions represent the range of my target audiences, including the fields of Indigenous Law and Governance, Comparative Law, and Political Philosophy. I extend my sincere thanks also to the ASCL for its invitation to host this dialogue on its blog.
Because my interlocutors’ interventions are not readily synthesized under common themes, I will respond to them in the order that they were published. For Whitman and for Kymlicka, an adequate response requires that I draw upon contentious theoretical claims. Since a blog is not the appropriate forum in which to work contentious claims through, I am in the unenviable position of having to introduce novel ideas with (one hopes) some claim to reasonableness, even absent the fulsome defence they clearly need. In both Whitman’s and Kymlicka’s cases, the issues presented are among the most pressing my work raises. As they have generously anticipated, I simply need more time. Thus, I would ask my respondents to receive these preliminary replies as a prelude to the more robust accounts forthcoming, and, likewise, for readers to receive them as invitations to a larger dialogue.
In effect, that is the whole point. My hope is that this mini-symposium, and the article supporting it, might serve to expand space within the fields of Comparative Law, Political Philosophy, and to a lesser extent, Philosophy of Law, for the study of Indigenous peoples’ systems of law and governance. While legal and cultural anthropologists, as well as scholars in the field of Indigenous Legal Traditions, make distinct and valuable contributions to our understanding of Indigenous peoples’ systems of law, comparative law scholars, political philosophers, and legal philosophers, are uniquely situated to make significant contributions of their own, to the benefit of Indigenous peoples’ legal systems and to their own traditions of intellectual inquiry.
On Matthew Fletcher’s Reply
My first interlocutor is Professor Matthew L.M. Fletcher, a scholar of Federal Indian Law and of Tribal Law, with a sustained interest in Anishinaabe legal and political philosophy. His intervention is, fittingly, comparative: he adds to my argument a closely related comparator group from another jurisdiction, American Tribal (he specifically includes Anishinaabe) nations. He observes that the legal and political context of belonging in these communities is also organized under a citizenship model. As in the Canadian context, the citizenship model is imposed by a settler colonial state: if tribal nations want not to be excluded from federal funding, they “have to play by the colonizer’s rules”. Fletcher explains that, in the American case, that means not just using a citizenship model of belonging, but using it in the service of achieving the federal government’s Indigenous exclusion imperatives, defined by blood quantum. The intended generational impact is diminishing capacity to meet what is ultimately a race-based criterion for membership. As a predictable result, within many tribal governments’ membership policies, whether retrospectively (through mass disenrollments) or prospectively (through enrolment moratoriums), “Inequities abound”.
In the Canadian settler colonial context, the law and politics of belonging on First Nations is equally fraught, and for the same internal colonial[2] reasons. The exclusionary practices that First Nations’ governments have deployed in response to internal colonial governance imperatives have often been gendered.[3]
A related similarity, against the association sometimes made between kinship and the pejorative use of “tribalism”, is that in both jurisdictions the result of legal but unjust blood-based exclusion is achieved directly through citizenship. Of course, this does not place kinship on higher moral ground, but it provides warrant for reconsidering perspectives that kinship is somehow more deserving of skepticism than is citizenship with regard to how each honours the principle of equality within Indigenous political communities. Fletcher’s contribution shows, at least for Indigenous political communities under conditions of internal colonialism, that the bare idea that kinship must necessarily be racialized, exclusionary, and backwards, and conversely that citizenship is predisposed towards the modern liberal democratic ends of liberty and equality, is naïve and essentialist. Such a view may be true in some, or many, cases—but it is not obviously or categorically so. If one does not require an argument which effectively makes the case in each instance, it may be that one’s baseline presuppositions about belonging represent a parochial distortion.
Finally, Fletcher’s prospective view is pessimistic, but not unreservedly. He knows the American context of these issues much better than I, so I will simply take that the worry in his emphatic “It won’t happen here” statement about kinship’s revitalization is well-founded. But looking to the Anishinaabeg “up north”, by which I take that he means within Canada, he ends his reply on a hopeful note. In particular, he identifies the ogimaag, or leaders of these northern Anishinaabe communities, as the grounding for that hopefulness. For those who may not know, the reference to ogimaag is a direct invocation of Anishinaabe law and governance; ogimaag are the key facilitators of legal and political deliberation within Anishinaabe law, understood on its own terms.
Fletcher and I thus appear to be pointed in the same direction: the carnage of settler colonialism on Indigenous communities, and the resulting internalized toxicity he describes, have largely been effected through technologies of settler law superimposed over Indigenous law. Hope lies in the revitalization of Indigenous systems of law, in and on their own terms. This remedial view requires at least two overarching projects. The first is the presentation of models of Indigenous systems of law and governance in and on their own terms, so that we can understand how and why they worked, and from that basis—and upon critical examination—seek to understand how they may be helpfully revitalized today. This is the project in service of which my article is offered. It is also a goal towards which Fletcher has long contributed through his role as a tribal court judge.[4]
The second overarching project, which can only follow from the first, is to develop viable theories of social change, which move from the conditions of settler colonialism into the conditions of revitalized Indigenous law in and on its own terms. Fletcher proceeds by realizing piecemeal but stable reforms through an expanding tribal law jurisprudence that incorporates elements of Anishinaabe law (through the comparatist’s lens, legal transplants).[5] I am keenly interested in this project, but I aspire to something which strikes me as bolder by virtue of its systematic orientation, in the service of transformative, not reformative, change. I would see Indigenous law revitalized within its own (i.e. decentralized and persuasive) model of legality, a position I unpack below.
On James Whitman’s Reply
With tremendous grace, Professor James Whitman highlights the foundational methodological anxiety my article pushes upon, which I suspect may be shared by much of the AJCL’s readership and the ASCL’s membership. I refer to a methodological distinction between two modes of inquiry: deep examination of a singular (if comprehensive and multiform) object of inquiry in and on its own terms, versus broad examination of multiple (even if particular and multipart) objects across their distinct contexts. The latter description refers to classic comparative law method. The former, which Whitman rightly asserts I have here undertaken, does not.
Invoking a Cultural Anthropology framing, Whitman likens my approach to Clifford Geertz’s thick description.[6] I am honoured by the comparison! Thick description is indeed a fine way to pursue the sustained examination of a singular, comprehensive object in and on its own terms. I would take the spirit of the comparison still further. Another disciplinary approach within this mode of inquiry is conceptual analysis, the primary method within Analytic Philosophy. The article endeavours to tie this approach in, too; hopefully, the fact that it serves as the site of Kymlicka’s engagement means that it does so with some success. Thus, whether through thick description or conceptual analysis, when it comes to the study of Indigenous peoples’ systems of law, I am committed to the deep and sustained examination of a singular object in and on its own terms.
The salient question is whether the conclusion Whitman draws regarding the relationship between the two modes of inquiry is correct. Voicing a perspective that I expect is widely shared, he suggests that “thick description, at least when it gets too thick, is a bit at odds with the spirit, and the promise, of comparative law.” The claim appears to be that thick description, or what I more abstractly prefer to describe as a mode of inquiry characterized by the deep, sustained examination of a singular object in and on its own terms, is in natural (and perhaps necessary?) tension with the comparatist impulse to learn by reading across distinct contexts. On this view, gains through one approach are purchased at some cost to the other.
As a leading scholar in the field, Whitman clearly has a surer grip on the spirit and promise of Comparative Law than I do. Further, I think his position is shared by several of my most senior comparatist colleagues at McGill Law. As a general matter, I do not mean to challenge his claim. Rather, the question my article poses is much narrower: is the comparatist’s orthodox methodological toolbox adequate to the task of comparison between Indigenous and settler (whether Common Law or Civilian) legal systems? Across this divide, foundational differences of ontology and epistemology, arguably absent in comparisons between Common Law and Civilian traditions, are immediately present. If I am reading correctly, Whitman’s discomfort with animism, and the association he makes between it and the edifice of social science, is precisely to take the point.
For my part, I have long held that deep, sustained examination of any Indigenous people’s system of law in on its own terms serves as a condition of possibility for comparison, and more generally, of communication, across the incommensurable ontological and epistemological divides which sometimes characterize Indigenous and settler systems of law.[7] Of course, the factual claim of incommensurability, bugaboo that it is, must be borne out descriptively. I cannot do that work here, and the article has only begun to do so. Such work is imperative, but must be reserved for an article which centres it.
As an interim measure, it may assist for me to clarify my use of the term, which is the following claim: Anishinaabe law in and on its own terms and Canadian law in and on its own terms cannot directly communicate with one another (amongst other means, via legal transplants), because, in the strict sense, they do not share a common measure. Law’s measure is legality. It is Law’s distinct kind of authority, understood as legitimate power, that makes law what it is. Legality, then, is “the property of being law”.[8]
Within the mainstream of the Western Legal Tradition, that property is said to have, at minimum, two necessary conditions. The first is institutional: legitimate legal authority is centralized through legislative, judicial, and executive institutions. The second condition is that the fundamental character of legality is coercive: it is the justified exercise of power over the community’s members— paradigmatically, via legal rules. The necessity of these two conditions arises from the dominant arc of Western political theory’s centring on the principle of individual autonomy. That political centre conceptually (and I would argue, morally) frames the orthodox range of Western legal theory debates. My dialogue with Kymlicka, below, is about just this point.
In contrast, the descriptive work that I cannot here present shows that within Anishinaabe legal theory, legality is decentralized: its processes and its authority remain personalized within the membership. Its fundamental character is therefore persuasive: community members seek to persuade one another of how best to meet the demands of collective action. The kind of legal norm of central significance here is what we call a “teaching”, the content of which is contingent and subjective. Teachings, then, do not aspire to the certainty that legal rules do. Instead of compelling compliance, legal subjects seek to secure it persuasively. This is why, in the article, I wrote that:
Descriptive and analytical research is not a preamble to the discovery or clarification of abstract legal principles and legal rules. Anishinaabe communities practicing Anishinaabe law on its own terms are not seeking to apply transcendent norms; it is, consequently, not the comparativist’s or legal theorist’s task to clarify and render such norms accessible. Rather, the purpose of descriptive and analytical exposition is to disclose the implicit normativity that always already exists inside of our various kinds of relationships (again, principally via kinship). The governing methodological principle is, thus, humility: rather than prescribing, we aim for clarity and accessibility by opening a way to a practice that invites the reader into the implicit normativity.[9]
My incommensurability claim, therefore, is that where different legal systems are animated by distinct conceptions of legality, then they are not only different (which is legal pluralism), but also are different in kind: legality pluralism. Differences in kind are, by definition, not directly cognizable to one another. Consequently, across a legality divide, functional (or indirect) comparison is the most for which one may aspire.
To return to the bugaboo which shadows the term “incommensurability” everywhere it travels, this is a very different claim from suggesting that actors within (or academics theorizing or describing) one of those systems cannot render it cognizable to actors and academics situated within, and beholden to the intellectual and discursive traditions of, the other one. On the contrary, the communicative task is all of possible, valuable, and necessary. Moreover, in presenting a legal and political conception of kinship, this kind of difference-breaching communication is precisely the work that I hope my article is doing! But as I explained, the goal of shared understanding across this divide—and so the possibility of direct comparison, which requires a common measure—is not the end towards which mutual recognition strives. Because Anishinaabe law and Canadian law do not share a common measure (that is, because they operate on distinct conceptions of legality), the fundamental differences between them will remain irreducible and, thus, legally irreconcilable.
I have the good fortune of being invited to offer a plenary address at this year’s annual ASCL conference (Professor Whitman will offer the other one), and I will endeavour to make headway in the much-needed descriptive account of Anishinaabe legality then. Here, the point is to show that where what I will call “legality difference” obtains, then the communicative goal must be a political reconciliation, based on developing understanding between interlocutors on the various sides of one another’s legal systems. Any effort to short-circuit the political resolution with a legal one necessarily casts the norms and institutions of one of the legal orders (and under conditions of internal colonialism, it is invariably the Indigenous one) within the conceptual terms and institutions of the other one.
Why must this be so? As I argued in my dissertation,[10] the answer is that to transplant artefacts of Indigenous law across legality difference is to sever them from the conception of legality which authorized them as lawful in the first place, and to replant them within the different-in-kind model of legality that animates and authorizes the settler legal order (whether Common Law, Civilian, mixed-jurisdiction, etc.). In the result, Indigenous law now becomes authorized, reconceptualized, and expressed through the settler legal system’s model of legality. Yet if legality is the property that makes law, law, then the sense in which Indigenous law can be said to survive translation across legality kinds, as Indigenous law, is at best, unclear, and at worst, a contradiction-in-terms.
In presenting the structure of my argument about incommensurability, I have accepted a calculated risk. Most readers will need more—namely, the missing descriptive account—to be persuaded. However, I do not mean to bring you all the way along. For the immediate purpose of replying to Professor Whitman’s important intervention, my more modest (and conditional) hope is for readers to accept only that if my incommensurability claim holds in contexts of Indigenous and settler legality difference, then it follows that deep and sustained examination of an Indigenous people’s legal order in and on its own terms is a necessary condition for rendering comparison across the divide possible. And even then, the comparison enabled is indirect, or functional, because the fact of irreducible measures—distinct conceptions of legality—is unbridgeable. My hope is that to achieve just this much, I need not descriptively bear out the claim of legality difference in the Anishinaabe case; that, rather, it will suffice to have introduced the logical structure of the problem.
To assist, I can illustrate the idea by drawing from my article. In offering a thick description (and conceptual analysis) of Anishinaabe kinship, I hoped to enable functional comparison between its boundaries and borders (differentiated, contingent, and ambiguous) with those of citizenship (uniform, settled, and certain). Since the political boundaries of Anishinaabe kinship are incognizable with those of citizenship, I worried that absent the thick description I offered they would not be identifiable by most readers as political boundaries at all. The thick description served, therefore, as an enabling condition of the functional comparison.
Consequently, and constrained to the context of legality difference as between Indigenous and settler legal orders, I see the kind of inquiry undertaken in my article in a mutually supportive relation with—indeed, as making possible—the kind of comparative study across contexts that Whitman values, rather than pulling against it.
I am curious as to how the ASCL community will receive this doubtless controversial claim, which blurs the disciplinary boundaries of Anthropology and Comparative Law. I hope comparatists see that, if I am right, it follows that there is a place for them, too, in the study of Indigenous legal orders. This matters to me because our understanding of Indigenous legal orders could be so much richer with the benefit of their considered attention. Reciprocally, I suspect that, by virtue of its difference-in-kind, Indigenous law and Indigenous legal theory may serve to bring into relief aspects of the Common Law and Civilian traditions which they do not readily reveal to one other. I am most grateful to Professor Whitman for assisting me, even in the preliminary fashion of a blog post, to rearticulate my stakes.
On Will Kymlicka’s Reply
My third and final interlocutor is the social and political philosopher Will Kymlicka. Of the two registers (legal and political) in which I present my claim about kinship, his focus is on the political one. He argues that different ideas about the purpose of politics may be what separates our views of the relative merits and demerits of citizenship and of kinship as models of belonging to political community. He explains that, insofar as public authority is needed to govern and to coordinate collective action, then the purpose of politics is to ensure that political authority is legitimate. He adds that, in making the governed the authors of government, these are precisely the conditions which citizenship supplies.
On the one hand, Kymlicka identifies, rightly, that I have not shown the same of kinship, and quite reasonably, he puts me to proof. On the other hand, he argues that citizenship has more relational resources than I allow. He draws my attention to the fact that citizenship is taken by social democrats and conservatives alike as fit for purpose: it serves the necessary end of providing political authority’s legitimacy conditions, while successfully navigating the social conception of the self that is essential to the thick sense of group identity internal to both of these political traditions.
I will answer both concerns at once, although as above, my reply is necessarily thin. Kymlicka’s challenge merits a robust answer, which I will provide in due course. For the purpose of an immediate reply, I will, once more, have to introduce contentious theoretical claims without properly defending them.
Kymlicka starts us in the right place, clarifying the purpose of politics. I accept both of his points. Yes, the purpose of politics is to ensure that political authority is legitimate, and yes, citizenship is an exemplary model thereof. Our first and overarching disagreement is whether political authority must be public in the way that a framing of politics in respect of the principle of autonomy demands: the public autonomy / private autonomy divide. Kymlicka says that it does, because collective action is indispensable to governance and it requires legitimate coercion: public sphere authority. Because citizenship positions the demos as the authors of coercive authority—that is, because they subject themselves to it—it is legitimate.
My intervention is to deny the necessity claim. I say that citizenship, in just the way Kymlicka explains, provides one means of meeting the legitimacy conditions that political authority requires. However, I would specify that the justificatory force of its means—bringing authorhood and subjecthood of government into alignment—is not transcendental. Rather the logic of legitimacy here gives elegant expression to a historically-situated conception of freedom, in which freedom means something like being able to choose for oneself. This is the ideal of individual autonomy, and as a political manifestation of the ideal, citizenship operationalizes legitimacy as consent. Consent is what it means to say that legitimacy consists in the fact that one has co-authored the conditions of coercion to which he is subject.
But the consent model of legitimacy that citizenship represents is contingent, not categorical. If we start with an Individually autonomous conception of the self, then we need a conception of freedom which respects the autonomous individual’s capacity for choice. And if we conceptualize freedom in this way, then it follows that coercive authority’s legitimacy conditions will need to give expression to something like consent. My question is, what happens when the conceptual model starts elsewhere? The ontologically relational, deep interdependence of the self that kinship imagines would seem to present quite a different starting point, and here we come to the heart of the matter.
Kymlicka certainly understands this challenge and he believes that he has an adequate reply. He has, after all, been dealing with what we might call the “insufficiently social self” critique for decades. Thus, in stating that “a commitment to citizenship needn’t rest on a distinctly liberal individualist ontology”, he has preemptively clarified that “individual” need not mean “atomistic”. Indeed, his powerful argument that community should be understood as part of the context of choice that empowers individual autonomy is well known.[11] There are other traditions of Western political thought, too, which want to distinguish themselves from the atomistic conception of the self for which, for instance, John Rawls has been so roundly criticized. I tried to give some recognition to this point in the article, identifying the communitarian and relational autonomy (and relatedly, feminist) political traditions, amongst others.
But are these political traditions really marshalling appropriate conceptual resources for the question I am posing? Are we really just naming the same idea of a socially-constituted self differently? I worry that we equivocate on the term “social”, and if I am right, then we are speaking at cross-purposes. It is easy for me to accept the truth, and the value, of these distinct groups’ claims to community, because they are claims about community’s role in specifying the ideal of individual autonomy, which I think has them addressing a different project from mine.
More specifically, they attenuate the hard edges of “individual”, but not of “autonomy”. As for autonomy, they retain the conception of the self as a being who frames purposes individually; they just tell more complicated stories about how those purposes may be formed, enabled, or satisfied. In various ways and to various degrees, community factors as a necessary condition into the “individual” component of all of their freedom stories, such that they differ markedly from Rawls’. However, the ideal of autonomy proceeds relatively unchanged: their different freedom stories all retain a strong version of the conviction that the (now socially-constituted) self needs to preserve and shore up her capacity to choose her own ends, as against the demands, desires, capacities, and visions of the good, of others.
Insofar as this commitment remains, these various camps are not talking about what I am after, and consequently, it seems to me that their generalized claim to a relational conception of the self claims too much. Rather, the picture of the self which frames purposes individually, but which needs community to do so, is better described as ontologically individual and only politically relational.
The deep conception of relationality that the Anishinaabe model of kinship presents posits a conception of the self which is ontologically relational. The claim here is not just that the self needs community to realize its interests or a good life, or for that matter, to be free. Rather, it needs others just to be. In my article, Cree Elder Stan McKay articulates this idea when he explains of the kinship self that “Our identity as creatures in the creation cannot be expressed without talking about the rest of creation, since that very identity includes a sense of the interdependence and connectedness of all life.”[12]
What does this mean, concretely?
Kymlicka might reasonably expect me to suggest that its’ salient meaning is the way in which it challenges the picture of a (socially-constituted) autonomous self’s individual framing of purposes. In the proper space, I will challenge that picture. For the moment, I will just introduce two ideas at the root of such a reply. The first is that the relational self my kinship article relies upon, and which I believe McKay is also describing, frames its purposes relationally: as a father, neighbour, host, etc. The outcomes such a position generates are not the same as those of a socially-constituted self which frames its purposes as an abstract and singular unity, but in ways that relationships have made possible or meaningful.
Second, the linguistic “I” which serves as the site of my various relational positions is an embodied spiritual composite. The moment I entered into this world, the “I” that I inhabit in English was plural: “I” was already the union of two spirit beings within one body (White Wolf, the unique spirit who came into the world through my body, and the spirit of the Bear Clan, which lives in my bones).[13] In general then, actions I take and expressions of purpose I make represent a synthesis of positions, the result of an internal dialogue. Restated, the reasons that an ontologically relational “I” gives are not imagined to be sole-sourced or unitary; rather, my speech acts represent a synthesis of perspectives from multiple-beings-in-one, and are, thus, expressive of their relationship with each other.
Yet there is a way of explaining the meaning of fundamental (or ontological) interdependence for a relational conception of the self which is more within the spirit of Anishinaabe political theory, and which should therefore serve as the first line of response. It is not grounded in the framing of purposes. Rather, it centres on one’s capacity for gift exchange. Here, the fundamental dignity of persons consists in their status as gift-bearing and gift-receiving subjects. Consequentially, to speak of dignity is to recognize a fundamental openness to the exchange claims of others. Thus, the question of whether my freedom is diminished by another’s claim upon me (or by the consequences of a claim directed elsewhere but which nonetheless bears upon me) will always turn on the particulars which characterize the claim. The question can never be preemptively resolved by appeal to a principled position which, at least provisionally, walls the self off from the unchosen claims of others.
From this standpoint, freedom speaks more of one’s capacity for self-realization than it does one’s capacity for choice. The special value of choice consists in the extent to which it serves the end of self-realization; beyond this, it is but one important moral good amongst others. The primary domain of freedom, then, isn’t action but interaction: freedom is a language for describing the quality of one’s relationships, in terms of whether they promote or diminish one’s capacity for self-realization.
Thus far, I have drawn a line from an ontologically relational account of the self to a relational account of freedom. But to complete my reply to Kymlicka, the link between this relational account of freedom and the legitimacy conditions of political authority within kinship communities must now be drawn. Otherwise, it may be that centralization and coercion are necessary conditions not just for the citizenship account of political authority’s legitimacy, but for political authority generally. As a result, the kinship model of belonging that I have presented would fail the test of legitimate governance. As with several other steps of my argument in this blog post, deeper engagement is required. However, the sketch version of this final step goes as follows.
As earlier stated, within Anishinaabe governance in and on its own terms, there is no state, no institutions which hold centralized political and legal authority. Instead, authority remains decentralized: always in the people, who exercise it directly, in their personal capacity. The question of legitimacy, then, is not about holding a government accountable to subjects who have consented to its exercise of coercion over them. Against such political decentralization, consent is an incoherent principle. No one is vested with coercive power.
Rather, the question of legitimacy regards how individuals acting in their personal capacity are held accountable to one another for their use of the measure of power entrusted to each. That power is transformed into authority (i.e. is rendered legitimate) when one’s community members accept that his decision was made with adequate regard for all upon whom its consequences bear. And the test for this condition—which is trust, not consent—is whether the impacted community members are persuaded that their mutual self-realization (i.e. their freedom) has remained sufficiently within the decision-maker’s view throughout.
This kind of relational decision-making is a practise of personal self-governance. The personal register of self-governance is understood to satisfy the legitimacy condition—recognition of mutual self-realization—in the following way. Someone practices personal self-governance to the extent that she acts, and is seen to act, responsibly within her relationships. This is because, for an ontologically relational self, those relationships define the “person” enacting “personal” self-governance. Where she succeeds, her authority is, therefore, persuasive in character. Restated, the persuasive character of authority is legitimate because it exercises power in the appropriate, freedom-respecting way: with, not over, one’s community members. On this deep, or ontological, relationality model of legitimacy, it is the exercise of power-with which allows community members to see themselves reflected within the decision-maker’s decision, and on that basis, they are persuaded of its legitimacy, for it has exercised power rightly—as authority—even if they disagree substantively on the outcome.
To tie the argument off: these are the conditions which the conception of kinship that I have presented supplies. If the argument is sound, it follows that there is a world in which kinship, too, meets the demands of legitimate governance, and, within such a world, it seems difficult to say that citizenship could do so. Let this serve as a basis for other conversations.
As I have recognized in several moments, my central theoretical claims must be borne out descriptively, which is a future task. Yet I hope that these replies, provisional as they are, may nonetheless serve to open up room for comparative law scholars, political philosophers, and legal philosophers, to engage seriously with Indigenous law and governance understood in and on its own terms. It will benefit, and I think they will, too.
[1] Aaron Mills, First Nations’ Citizenship and Kinship Compared: Belonging’s Stake in Legality, 72:4 Am. J. Compar. L. 892 (2025).
[2] I explain in the article why I prefer James Tully’s term “internal colonialism” over the more common “settler colonialism”, but they are different naming conventions for the same thing. Seeid. at 900.
[3] 1A National Inquiry into Missing and Murdered Indigenous Women and Girls, Reclaiming power and place: final Report 250, 374, 409 (2019).
[10] Aaron James Mills, Miinigowiziwin: All That Has Been Given for Living Well Together: One Vision of Anishinaabe Constitutionalism 30-37 (July 22, 2019) (Ph.D. dissertation, University of Victoria) (on file with University of Victoria Libraries).
[11] Will Kymlicka, Liberalism, Community and Culture (1989); Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (1996).
[12] Stan McKay, Calling Creation into Our Family, in Nation to Nation: Aboriginal Sovereignty and the Future of Canada 28, 29 (Diane Engelstad & John Bird eds., 1992).
[13] Darlene Johnston, Connecting People to Place: Great Lakes Aboriginal History in Cultural Context 24-25 (2004) (prepared for The Ipperwash Commission of Inquiry).
