Gender and Private International Law

By Roxana Banu

Although feminist scholars turned their attention and critical eye to Private International Law’s neighboring fields for quite some time, they have generally left Private International Law unexplored. Private International Law scholars have similarly shown no particular interest in gender studies scholarship and have even failed to take stock of their own field’s gender dimensions. It is remarkable therefore that in the last ten years a few feminist – and private international law scholars respectively have started to look to each other for inspiration on how to solve or at least analyze issues raised in their respective fields. As illustrated through the excerpts referenced below, Ivana Isailovic, Mary Keyes, and Roxana Banu have argued that private international law could benefit from a thorough feminist reform of its methodology, its philosophical binaries and its often-simplistic understanding of individual agency in the transnational space. On the other hand, Karen Knop, Ralf Michaels, and Annelise Riles have argued that private international law’s methodological arsenal, when employed as an intellectual style and a mode of sequenced reasoning, is remarkably nuanced and capable to generate insight which otherwise gets lost in the feminist/culture dilemma. Quite strikingly, on both sides of the aisle these scholars suggest that the other field, whether gender studies or private international law, might be better equipped analytically to reason through the complex issues raised by head scarves, veils, surrogacy agreements, polygamy and so on.

This initial burst of interdisciplinary engagement is remarkable and already covered significant analytical ground in a short time-span, but it is still quite exploratory. To move it forward we would need to expand both the range of interlocutors and provide for meaningful cross-learning of each field’s analytical potential and limitations. On the feminist side, we would surely want to hear both from those who are prone to “take a break” from feminism, as well as from those committed to its core. Along its wide-ranging spectrum, we would want to encourage liberal, radical, cultural, poststructuralist, transnational and various other strands of feminism to engage with private international law from their own point of view. Similarly, in private international law, we should encourage those committed to the potential of its techniques and methodologies to explore how they have historically responded to encounters with gender questions just as much as we should encourage the skeptics to explain what stops private international law from reinventing itself, possibly through its techniques and methodologies, to respond to feminist critiques and insights. To make the interdisciplinary dialogue meaningful and fruitful one needs to take seriously the long history and analytical richness of both fields. This is, I believe, what this interdisciplinary project could help to foster and bring to fruition.

As a meaningful interdisciplinary conversation between gender studies – and private international law scholars gets off the ground, it may be helpful to foreshadow a few methodological questions, which have plagued other interdisciplinary engagements and to reflect on potential limitations of such a project. First, is it possible to bring into conversation two fields, which display a significant degree of internal discord? Various strands of feminism have a hard time identifying common ground just as much as various strands of private international law theoretical perspectives move in opposite directions. Is it possible to take advantage of the richness of perspectives within the two fields without doubling the cacophony? Second, mirroring a perennial question in the interdisciplinary engagement of lawyers and historians, is it possible that gender studies scholars and private international law scholars have a fundamentally different outlook and mode of analysis, such that they may not find the same questions interesting or rewarding or such that they may seem to step on each other’s toes on particular methodological or analytical commitments? Third, and related to the second point, are the ultimate aims of both disciplines so different that there will always be a limit to how much they can benefit from each others’ insights? For example, even if private international law were willing to incorporate the richness of feminist critique, it would ultimately have to make a final determination on particular legal questions. While the richness of feminist thought may encourage us to constant reflection and revisiting of premises, private international law is forced to produce ultimate decisions to particular legal questions and thus be incapable of reconciling different feminist insights at once. At first glance, it may appear that feminism is endlessly open and private international law inevitably closed. Interestingly however, in their article on the “Comfort Women” issue Karen Knop and Annelise Riles argued that some of private international law’s techniques allow the field to “open and close” different questions in different jurisdictions at particular times, thus offering a more fluid and less final determination than the one that feminist scholars are searching for, with emancipatory consequences for feminist thought. Is this just a particular way of viewing private international law as a mode of reasoning rather than a legal field and if we view it in this latter way, can private international law remain as open-ended as feminist thought may require?