Federalism and Gender Equality
| Published date | 01 December 2018 |
| Date | 01 December 2018 |
| DOI | 10.1177/0067205X1804600402 |
| Subject Matter | Article |
Susan H Williams*
ABSTRACT
Despite the enormous literature on federalism in constitutional design, and the growing
attention to gender equality in constitutional design, there has been remarkably little
attention paid to the interaction between the two. This article seeks to provide a
summary of the existing literature on this intersection, to apply the insights of that
literature to the case of Myanmar, and to offer a contribution concerning the theoretical
connections between federalism and gender equality. The analysis generates four
primary conclusions. First, federalism is inherently neither good nor bad for gender
equality: it all depends on the details of the federal system and the context in which they
are applied. Second, there are, nonetheless, some guidelines that can be gleaned from
the experiences of countries around the world about the design elements that can make
federalism more or less useful for promoting gender equality under different conditions.
Third, applying these elements in the case of Myanmar suggests that women’s
organisations might make common cause with the ethnic minority groups that are
negotiating with the government and the army over federalism issues because the
women share with these groups certain goals with respect to federal systems. And
fourth, there is a connection between gender and federalism, not at the pragmatic or
design level, but at the theoretical level. This connection concerns the type of (ideal)
orientation that is required of citizens in a federal system and the ways in which that
orientation might be valuable for gender equality. It is, then, the character of federal
citizens, rather than the federal system itself, that could be inherently beneficial to
gender equality.
*
Walter W Foskett Professor of Law and Director of the Center for Constitutional Democracy
at Indiana University Maurer School of Law. I would like to thank Cody Vaughn, Yah Dolo-
Barbu and Samantha Von Ende for their research assistance on this piece. I am also grateful
to the Joint Peace Fund in Myanmar for asking me to do the presentation on these issues that
sparked this research. Finally, my gratitude goes to the Women’s League of Burma, with
which I have been proud to be associated for over a decade. The commitment and idealism
of these women is the inspiration for this work and I hope that some of these ideas will prove
useful to them in their struggle for gender equality as Myanmar moves toward a more federal
system.
492
Federal Law Review
Volume 46
_____________________________________________________________________________________
I INTRODUCTION
There is an enormous literature on federalism in constitutional design,1 and a growing
literature on gender equality in constitutional design,2 but remarkably little attention to
the interaction between the two. This article seeks to provide a summary of the existing
literature on this intersection, to apply the insights of that literature to the case of
Myanmar, and to offer a contribution concerning the theoretical connections between
federalism and gender equality. This analysis will generate four primary conclusions.
First, federalism is inherently neither good nor bad for gender equality: it all depends
on the details of the federal system and the context in which they are applied. As a result,
it would be useful if scholars and constitutional drafters stopped asking the general
question about whether federalism helps or hurts women. Second, there are, however,
some guidelines that can be gleaned from the experiences of countries around the world
about the design elements that can make federalism more or less useful for promoting
gender equality under different conditions. In other words, certain kinds of federal
structures may help or hurt women and I will offer a list of some of these elements and
examples from countries where they were effective, for good or ill. Third, applying these
elements in the case of Myanmar generates the conclusion that women’s organisations
might make common cause with the ethnic minority groups that are negotiating with
the government and the army over federalism issues because the women share with
these groups certain goals with respect to federal systems. At the same time, the
women’s movement needs to be focused on ensuring that the type of federalism adopted
fits the guidelines I will describe, so that it will be a benefit rather than a barrier to gender
equality. The case study is not an exhaustive evaluation of the design of federalism for
gender equality in Myanmar, 3 but an illustration of the more general approach
suggested in the theoretical analysis of federalism and gender equality. Finally, I will
suggest that there is a connection between gender and federalism, not at the pragmatic
or design level, but at the theoretical level. This connection concerns the type of (ideal)
orientation that is required of citizens in a federal system and the implications of that
orientation for gender equality. I will argue that federalism requires and encourages
citizens to recognise a plurality of authority systems and to develop an openness to the
challenges each of these multiple systems pose for the others. This sort of orientation, I
1
For a small sampling, see, eg, Donald L Horowitz, Ethnic Groups in Conflict (University of
California Press, 2nd ed, 2000); Arend Lijphart, ‘Consociation and Federation: Conceptual and
Empirical Links’ (1979) 12(3) Canadian Journal of Political Science 499; Andrew Reynolds, The
Architecture of Democracy: Constitutional Design, Conflict Management, and Democracy (Oxford
University Press, 2002).
2
See, eg, Beverley Baines and Ruth Rubio-Marin (eds), The Gender of Constitutional
Jurisprudence (Cambridge University Press, 2005); Susan H Williams (ed), Constituting
Equality: Gender Equality and Comparative Constitutional Law (Cambridge University Press,
2009); Beverley Baines, Daphne Barak-Erez, and Tsvi Kahana (eds), Feminist Constitutionalism:
Global Perspectives (Cambridge University Press, 2012); Kim Rubenstein and Katharine G
Young (eds), The Public Law of Gender: From the Local to the Global (Cambridge University Press,
2016); Helen Irving (ed), Constitutions and Gender (Edward Elgar, 2017).
3
For a more detailed assessment of some of the specifics of a federal system in Myanmar that
would help promote gender equality, see Christine Mary Forster, ‘Advancing Gender
Equality Within a Federal Governance Model in Myanmar’, (Report, UNWomen, 2017) at 35–
45 (suggesting specific allocations of particular subject matters to the union or the state
levels).
2018
Federalism and Gender Equality
493
_____________________________________________________________________________________
will suggest, is valuable for the project of promoting gender equality. It is, then, the
character of federal citizens, rather than the federal system itself, that could be inherently
beneficial to gender equality.
II FEDERALISM
Before it is possible to determine whether federalism helps or hurts gender equality, it
is necessary to define federalism. Federalism is, of course, a contested concept.4 While
many different definitions might be useful for different purposes, I am going to use a
very simple and minimalist definition that I hope will cover any system that most people
would consider federal (and probably many systems that some people would not).
Because my focus is on constitutional design, I adopt a constitutional definition.
Federalism, as I will use it, is any system in which devolution of power to sub-national
units is constitutionally guaranteed.5 This definition distinguishes federal systems from
systems of voluntary decentralisation, in which the central government could choose to
reduce or eliminate the powers of the subnational units. It does not, however, require
any particular amount of devolved power or any particular form of devolution. It leaves
open the possibility of sub-national units exercising specifically enumerated subject
matter powers (as under the current Constitution of Myanmar),6 or holding all residual
powers (as in the US),7 or exercising powers of administration even in areas of national
policy-making (as in Germany). 8 It leaves open the possibility of asymmetrical
federalism, in which different sorts of sub-national units exercise different powers.9 But
it does require that some powers be devolved to the subnational units by the
4
See Daniel Elazar, Exploring Federalism (University of Alabama Press, 1987) 34–8 (comparing
contrasting models of federalism); see also Thomas Hueglin, ‘Federalism at the Crossroads:
Old Meanings, New Significance’ (2003) 36 Canadian Journal of Political Science 275, 275 (‘On
all counts, federalism has remained a contested concept.’)
5
Compare Elazar, above n 4, 34 (‘Federalism is based on a particular kind of constitutional
framework.’); Vincent Ostrom, ‘The Meaning of American Federalism: Constituting a Self-
Governing Society’ (ICS Press, 1991), 7 (‘The standard definition of federalism is a system of
government where authority is exercised concurrently by a national government and state or
provincial governments.’)
6
Constitution of the Republic of the Union of Myanmar, May 29, 2008, sch 2.
7
United States Constitution amend X.
8
See Grundgesetz für die...
To continue reading
Request your trial