The Law and Politics of Inclusion

From Rights to Practices of Disidentification

Valeria Venditti

• Publisher: Routledge
• Year: 2019
• eBook ISBN:
  9781351127844
• Topic: Droit
• Subtopic: Droits civiques en droit

On the one hand, inclusion constitutes a powerful framework of political agency, as people can gain access to forms of recognition granting legal protection and social visibility. On the other hand, inclusion requires their adherence to fixed matrices incorporating specific and limited forms of life. This opposition reflects a similar division within the academic field: between liberal advocates of inclusion and those who regard it as a form of assimilation, where differences are absorbed and tempered.

Uncovering the deficiencies in both viewpoints, this book analyzes inclusion by attending to the active role of subjects looking for inclusion, and mobilizing inclusive processes. Inclusion is thus reconceived as an ongoing, engaging movement of category-production, according to which there is no straightforward opposition between effective inclusion and assimilation. The book thus draws the idea of inclusion out of this opposition in order to delineate a form of political connectedness based on smaller social networks of solidarity that, although entailing some sort of normativity, are nevertheless characterized by fluidity and proximity. In this way, inclusion comes to be more productively, and more plausibly, reframed: as a web in which inclusive processes appear as moments of the renegotiation and rearticulation of a subjectivity in constant flux.

1 Model 1

Opportunity-oriented policies

The first model of inclusive policies I will analyze works on the assumption that increasing participation and political enfranchisement are the best ways to tackle social and political marginalization. This approach is meant to prompt people to play an active part within political institutions, for participation is taken as an inherent mark of an equalitarian democracy and public engagement is claimed to prevent the formation of enclaves of marginalization. While the former allows gathering different voices from disparate positions within society and giving them political visibility; the latter grants every citizen (without any distinction based on “personal features” such as sex, class, colour, religion) to access to the public forum, as well as the possibility of expressing their interests and affecting political decisions, especially through procedural mechanisms (such as vote).

Thus, as the name suggests, opportunity-oriented strategies mainly aim at offering to every citizen the opportunity to take part in decisional processes and democratic procedures. To do so, strategies and norms based on this model are concerned with regulating the public aspects of people’s life. In this sense, inclusion is considered to follow from equality and is articulated as a formal achievement. Inclusion and equality are understood as two necessary features of social justice. Yet, social justice (as I will show in this chapter) appears here as a very narrow concept. Opportunity-oriented policies limit their consideration of social justice to the public, shared, political space and conceive it as “the absence of social injustice” (Bufacchi 2012:1). Legal interventions and political strategies against marginalization are organized with a view on obtaining a fair arrangement of society. A democracy in which every subject counts as a citizen, that is, as a member of the polity endowed with all the rights and tasks of all the other members. Marginalization, in this approach, can be defeated through reclaiming a linear, logical political premise: equality makes equals.

Still, the price to treat everybody as equal, as equally included and able to join political life as a member of a political community, fails to weigh up the reasons behind marginalization. Opportunity-oriented strategies, to say it with Judith Shklar (in Bufacchi 2012:3), take “for granted that injustice is simply the absence of justice, and that once we know what is just, we know all we need to know”. The notion of political visibility and participation as a means to defeat marginalization “misses a great deal”. Shklar hits the mark, when she observes:

The sense of injustice, the difficulties of identifying both the unjust person and the victims of injustice, and the many ways in which we all learn to live with each other’s injustices tend to be ignored, as does the relation of private injustice to public order. (Shklar in Bufacchi 2012:3, emphasis added)

In this model, social justice is pursued by considering only the public, ignoring its relation to the private sphere. Inclusion and equality are thus two aims to be achieved through the constitution of a “safe zone”, where individual traits and personal choices (that could feed prejudiced behaviours or unfair interactions) are banished. All citizens are made equal in front of the law. They have a place in the polity, no matter what their private, pre-political experience is.

While this blindness to the non-public side of citizens’ lives might retain positive results in granting a formal participation to proceduralized tasks in a democratic regime, this model ends up considering only those forms of discrimination that present a public aspect. In this chapter, I will argue that beneath the rhetoric of political equality and public inclusion, opportunity-oriented strategies tend to establish and reinforce an exclusionary system and are unable to modify, change or even challenge the traditional system of meaning or the social hierarchy that underlie and cause exclusion.

My argument will go as follows: I will begin by introducing an analysis of the outcomes of the private/public divide. Then, I will take as a case in point the trajectory of feminism. By looking at one of the foundational texts of liberal feminism,¹ The Declaration of Sentiments, I will illustrate how the interest of early feminists was in acquiring visibility in the political field in order to defeat a condition of discrimination that affected both their private and public positions. Liberation was the path to enjoy the same rights their male peers enjoyed. However, the core of their battles was not to be recognized as citizens, rather they aim at conquering a position in the social realm that could change their position in the private sphere. They wanted to be equal in front of the law, to make their way through an emancipated life. They asked for enfranchisement, education; they asked for a life for their own, for material liberation from masculine domination. No matter under what form (a job, a room, a voice in the Parliament), emancipation had to explode in the public arena, but its sparkles should light up an entire life. After that, I will gather things up and follow Catharine MacKinnon in a critical evaluation of all those political models that disregard the private sphere to refer only to an allegedly plain and linear public realm in which to create the equal conditions to foster inclusion. In this last section, I will not be concerned with putting to test MacKinnon’s theories, ideas and style.² My interests in her work lies in her account of the unfair social system we live in. By harshly criticizing the most part of legal resolutions and political organization (always, in her view, detrimental for women), MacKinnon provides us with a zealous insight on what is the problem of marginalization and formal inclusion. In a nutshell, the problem lies in the sedimented hierarchy and unfair system that no resolution whatsoever can address from within the system. Once we use the political tools of an utterly manly state, no space can be created for what is different: the centre will always belong to those who have written the rules. Needless to say, MacKinnon’s investigation concentrates on women’s discrimination and subjection, however, I invite the reader to consider the argument raised for women as a discourse that can be generalized. Women are “the others” of those who created the state (allegedly white, adult, able men in Greece few centuries ago, or, at least, this is what Aristotle avers), but every centre has a periphery, every “One” has an “Other” to which he relates.

Opportunity-oriented policies promote a formal inclusion, realized through granting access to political procedures to every citizen. One of the main flaws of this approach concerns the ambiguous bifurcation of the concept of equality they inadvertently support. In being based on a division between a private and a public sphere, and in considering as politically meaningful only the latter, equality assumes at least two political weights. As Susan Moller Okin (1989) observes, the perpetration of such a division produces a fracture in the social realm grounded on the imposition of a naturalized division of roles and based on the recognition of a “normal”, neutral, non-specific pole in relation to which other poles come to be identified (Okin 1989:93–94). It is in this binary structure that the model of the Citizen (the adult, able, respectable man) comes to be juxtaposed to an undefined group of “others”, which might variously be identified as different because of their sex, gender, skin colour, ethnicity, religion and so on. The creation of a difference-blind political sphere neither flattens nor harmonizes divergences. Instead, it relegates the tensions they bring about in the private sphere, where primary causes of discrimination often originate and reproduce.

To understand the tricky results of this approach, it is worth looking into the case of sexual equality. Among the many instances that might depict the limits of this kind of policies, the issue of women and, more broadly, gender equality provides a perfect example, since it offers a historical perspective on the outcomes of this strategy on marginalized groups. The trajectory of feminism and the transformation of feminist’s demands and struggles gives an account of the flaws inherent to a political recognition that leaves out an entire sphere of a citizen’s life.

It is by now commonly acknowledged that “feminism” is composed of a relatively broad range of civic movements and covers a wide spectrum of questions concerning women, womanhood and oppression in general.³ However, in the following pages, I will refer to an early instance of the feminist movement and treat it as a cohesive one. This simplification is key to develop a linear analysis of the shift that led from a feminism mostly concerned with the acquisition of political enfranchisement, to one mainly oriented towards the recognition of the (political) centrality of private experiences (see, among many others, Crispin 2017; Friedan 1963; Lonzi 2010). My aim here is to illustrate that, even when primarily directed at gaining political visibility, feminist claims kept seeking a recognition that could relieve their private condition. In other words, it seems clear that, even in the most “political” inclined demands for recognition, feminists looked at formal political equality as a means to change the personal situation of women.⁴

The struggle for women’s equality (organized and structured as a thick political movement) dates back to the end of the 18th century, when women began to ask for social visibility. In those days, exceptional “hyenas in a petticoat”⁵ started a debate destined to grow quickly; the oppression to which women were exposed, they contended, was a cultural fact dependent on the organization of society and not on natural hierarchies. Women were segregated in a private dimension and did not have the possibility of publicly raising their voices in society. They lacked power, education and freedom, and, for these reasons, were trapped in a situation of vulnerability.

The famous Declaration of Rights and Sentiment (1848)⁶ is exemplary. This document marks the beginning of a feminist movement that recognizes political enfranchisement as its main aim. The document, edited by Elizabeth Cady Stanton, Lucretia Mott and the group of activists gathered at the Seneca Falls Convention, identified some of the basic premises that underpin the challenges posed by the pursuit of sexual equality. Activists grounded their demands for equal rights in the assumption that every form of subordination takes place in a public framework and, thus, that any struggle for recognition should aim at unrooting the innate equality among men and women, overcoming a socially constructed and imposed hierarchy:

We hold these truths to be self-evident: that all men and women are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights governments are instituted, deriving their just powers from the consent of the governed. (Cady Stanton, Mott et al. 1848)

From this excerpt, it is possible to catch a glimpse of what would turn out to be the core of “liberal”⁷ feminist battles in the years to come. The authors of the Declaration look remarkably aware of the system in which women were caught; they believe “[t]he history of mankind” to be “a history of repeated injuries and usurpations on the part of man toward woman, having in direct object the establishment of an absolute tyranny over her”. Tyranny is described as the fact that rights “which are given to the most ignorant and degraded men – both natives and foreigners” such as rights of “citizen, the elective franchise, […] the rights in property […]” have been “withheld from [women]”. If these sentences sound extremely ground-breaking, the perspective of the writers goes far more deeply, envisioning the crucial value of creation of two “spheres of action”. They aver what follows:

He [the man] has created a false public sentiment by giving to the world a different code of morals for men and women, by which moral delinquencies which exclude women from society, are not only tolerated, but deemed of little account in man.

He has usurped the prerogative of Jehovah himself, claiming it as his right to assign for her a sphere of action […]. He has endeavoured, in every way that he could, to destroy her confidence in her own powers, to lessen her self-respect, and to make her willing to lead a dependent and abject life. (Cady Stanton, Mott et al. 1848)

The Declaration provides a pithy description of how women were subordinated to men and at the same time, proposes and demands a specific solution: to give women political representation in order to release them from an imposed seclusion. This proposal is rooted in an overturning of the condition whereby women “if married” (but also if not) appeared, “in the eye of the law, civilly dead” (Cady Stanton, Mott et al. 1848).

The collective beyond the Declaration seeks, in the first place, a formal, institutional equality. The authors articulate their longing for emancipation as a request for accessing the public space. The recognition they strive to achieve moves from the entitlement to actively participate in the political debate to the incorporation into the legal body of problems and questions concerning women and their private life. For the supporters of the liberal paradigm, elective franchise, the possibility to actively participate in the public sphere, the inclusion of a certain issue in the political agenda is conducive not only to the demolition of the barriers that confine women in the domestic sphere, but also, and above all, to the liberation from a state of minority and subjugation.

In sum, at the core of their battle, these early feminists put the creation of a common political platform. As the passages quoted above highlight, women claim their rights should be recognized by the powers to which they were subjected and which – by failing to properly consider them – subjected them. Interestingly, even while the solution envisaged lies in the achievement of a public, visible social stance, the authors of the Declaration are well aware of the complex nature of the power they question. What might be referred to as “patriarchy” is neither only a private domination nor exclusively a political supremacy: it is a capillary set of mores that are both private and political. Women should overcome fathers’, brothers’, husbands’ grips and try to join the public arena that their fathers, brothers, husbands deemed to fall outside the domestic, feminine, realm.

The attempt at reaching a public status as the means for enhancing women’s condition tells us something about the type of battle they were fighting. The insistence on the priority of being publicly and politically recognized might suggest the inconceivability of operating a change starting within the domestic bonds. Women should come out of the dark realm of the private sphere in order to obtain tools to enforce changes in the entire social structure, as well as in the political field that their private life was. If this awareness reached its peak with the feminist movements of the 1960s (as the rallying cry “the personal is political” demonstrates), the verso of the public scene appeared to be only a secondary issue in liberal programs.

An analysis of the reasons of the partial success of liberal feminist movements can be of help in unveiling the shortcomings of opportunity-oriented policies. Despite feminism’s great formal achievements (from the elective franchise to the right to abortion), women’s subjugation is far from being over. The condition of most women continues to be complicated: they are discriminated at work; suffer sexual harassment; are exposed to domestic violence, slavery, prostitution; are required to fit certain beauty and living standards.⁸

This all means that political enfranchisement cannot be regarded as the key to women’s liberation. Instead, the most insidious problem lies at the heart of social structures, where changes “cannot occur […] by edict” (Young 1990:152). The existing discrepancy between the formal liberation promoted in the legal text and its social impact fails to illuminate a condition of consolidate social inequality. This reasoning can be applied to a reading of opportunity-oriented policies. Norms...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Introduction: the (incorpo)reality of inclusion
• 1 Model 1: opportunity-oriented policies
• 2 Model 2: capability-based policies
• 3 Model 3: category-protecting policies
• 4 Millennial rights: a political revolution from the courts
• 5 Legal looping effect
• 6 Difference dissimulated: politics of marginalities
• Bibliography
• Index