No Conflict About this Non-Essentialist Reading
This engaging article is motivated by the complexity of framing (forget resolving) concepts of culture, by concerns that at least some feminists have become bogged down in their efforts to theorize veiling, clitoridectomy, and polygamy, among myriad other issues, and by a commitment to reasoning from law. In addition, deep into the piece, the authors explicitly state that they chose the direction of the piece in part to highlight that feminists tend to prioritize culture and leave unaddressed the role of economics in constructing tensions, identities, and concerns. Even if the article wasn’t so nicely written, even if it didn’t hold hints of something very interesting and hopeful, I would have been captivated by these motivations.
The authors drive the piece in surprising directions. Part I outlines feminism’s engagement with culture as concept. Part II situates a specific dispute (although in stylized form) that gives rise to a “clash” of cultures. Part III illustrates how the technique of conflict of laws assists in reasoning through the particular dispute. Part IV addresses possible objections and in Part V the authors argue that the approach delineated provides an intellectual style that might be adopted by feminists or cultural theorists.
Four reasons to read the piece…
First, the story is nicely told. The authors self-consciously reflect on the directions in which they take their narrative. They appreciate that they are not engaged in truth telling; rather they are preoccupied with finding a route through.
Second, the authors do a beautiful job with their work on characterization (see Part IV. B. 2.). This section should be essential reading for all third year students. It tugs at the fundamental creativity of law(s). The authors insist that we must think through the value, implications, results, and analytical clarity offered by alternate legal options. They claim, additionally, uniquenesses in conflict of laws analysis – a self-reflexivity combined with an “as if” modality. According to their rendering of the area, conflict of laws’ “open acknowledgement of the normative situatedness of characterization” is one of its analytical strengths. In other words, conflicts requires an explicit judicial move-one where the decision-maker is forced to be clear about the legal claims that might be pursued and the legal jurisdictions in which those claims might be made, in a way that is at a minimum less explicitly required in other substantive law areas.
Third, the specific dispute the authors review is fascinating, and deceptively simple. A father and daughter. She lives in California; he in Japan. He transfers all of the shares of the Californian subsidiary of a Japanese company to her. He is the chair, principal shareholder, and CEO of the Japanese company. She claims she has full decision-making control over the subsidiary. He claims he intended to retain control. What kind of law applies? Corporate law? Trust law? Gift law? Should the underlying legal norms of Japan govern? Those of California? Should the history of Japanese corporate law or the practices of Japanese families matter? The story isn’t drawn with precision from an underlying case, but it finds it basis in a real decision.
Fourth, the piece engages with a familiar story about the advantages of law (that one of law’s great strengths is its ability to resolve only the dispute before the decision-maker) in a new way. The authors claim that “[o]ur interest is in asking how thinking through feminism/culture problems analogically, as if they were technical conflicts questions, might open up new avenues of theorizing. In other words, the conflicts doctrines we discuss are not simply tools for resolving disputes, although – and this is the trick – that is precisely how they are structured. Rather, they are first and foremost tools with which to think.” (P. 628.) One of the long recognized (and critiqued) strengths of law is that it enables the person thinking it through a dispute to focus on that one dispute only. Ultimately the considerations one might bring to a single dispute have limits. The dispute can be articulated, resolved (possibly) on these facts, under this law, and for now. It is necessarily framed, delimited, contingent. This may clarify thinking. This is optimistic, of course, and refreshing.
Ultimately, in some ways the piece claims to be modest – it focuses on what is required to bring a single dispute to an equitable and legally defensible end and on how that approach might assist in the broad project of feminist theory. Nevertheless, the tenor of the piece is marvellous – it calls to a long history of legal theory; it picks up from where feminists (and feminisms) stand on theorizing culture; and it does all of that in a way that left me curious. Let me end with an excerpt from the article:
The insight of conflicts methodologies is that the tools sometimes exceed themselves, if we allow them to do so. It may be that limiting the possibilities at one methodological or disciplinary level creates inadvertent surprises, unexpected discoveries in other places. For legal scholars and lawyers this means recommitting to law, as opposed to say, popular culture, or fiction, as a medium of social change.
(P. 647).
