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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