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21 Can. J. L. & Jurisprudence 71 (2008)
Gender, Multiculturalism and Dialogue: The Case of Jewish Divorce

handle is hein.journals/caljp21 and id is 71 raw text is: Gender, Multiculturalism and Dialogue: The Case of Jewish Divorce Lisa Fishbayn I. Introduction: In Search of Dialogue Can the law act as a catalyst to change minority practices that discriminate against women? Can civil law merely impose remedies from outside the minority culture or can legal mechanisms be devised which spur internal change? This article engages in the debate over the proper role of the state in reconciling conflicts over women's claims to gender equality and the accommodation of minority cultural or religious practices that undermine this equality. It takes up the notions of trans- formative accommodation and deliberative dialogue promoted by theorists in this area and asks how such transformative remedies might operate in practice. It seeks to put into effect Bikhu Parekh's call for proponents of dialogic consensus to move beyond theoretical modeling of dialogue to facilitating engagement in genuine prac- tical dialogue. While inter-cultural and intra-cultural dialogue may be necessary to resolving disputes over women's rights and cultural rights, it is unlikely to take us far in the abstract and contextless form proposed by its advo- cates. Unlike philosophical deliberation about politics, a political dialogue occurs within a particular society with a particular moral structure, history and traditions, and its participants are not abstract moral beings but constituted in a certain way.' To this end, this article examines the role of dialogue in the concrete context of state intervention to alleviate women's disadvantage under Jewish religious divorce practices in Canada. After locating the position of women in debates over the fights of individuals and minority cultural communities, the article outlines the role envi- sioned for transformative, dialogic remedies in theories of multicultural accom- modation. It then describes the particular problem women face under the Jewish laws of divorce.' It identifies some of the pitfalls for agunah legislation which An earlier version of this paper was awarded the Pi Sigma Alpha Prize for Best Paper at the 2006 Annual Meeting of the Northeastern Political Science Association. I owe a debt of gratitude to some of central figures involved in the agunah struggle in Canada who generously shared their time and insights with me: Professor Norma Baumel Joseph, Evelyn Brook and John Syrtash, esq. Thanks also to Michal Frenkl, Sigal Landesberg, Sylvia Barack Fishman, Shula Reinharz, Sylvia Neil, Rachel Gober, Susan Aranoff, Rabbi David Lerner, Tracey Levy, Bridgette Sheridan, Christine Cooper and Oonagh Reitman for helpful comments and conversations. I am grateful to Becca Wasser and Shayna Weiss for able research assistance. 1. B. Parekh, Rethinking Multiculturalism: Cultural Diversity in Political Theory (London: MacMillan Press, 2000) at 267. 2. Halakha or Jewish Law is not recognized or enforced as law by the Canadian state. Rather, it binds adherents who choose to be subject to its strictures and to submit to the jurisdiction of Batei Din (Jewish Rabbinical Courts). It may be possible, however, for parties to use rabbinical courts and religious law in order to arbitrate their private disputes. The different movements within Judaism hold diverse views about the binding nature of halakha and its interpretation. The issues discussed in this paper largely impact upon the adherents to Orthodoxy. Canadian Journal of Law and Jurisprudence Vol. XI, No.1 (January 2008)

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