Table of Contents

Comparative Constitutional Law

Comparative Constitutional Law

Research Handbooks in Comparative Law series

Edited by Tom Ginsburg and Rosalind Dixon

This landmark volume of specially commissioned, original contributions by top international scholars organizes the issues and controversies of the rich and rapidly maturing field of comparative constitutional law.

Chapter 2: Drafting, Design and Gender

Helen Irving

Subjects: law - academic, comparative law, constitutional and administrative law


Helen Irving 1 INTRODUCTION The literature on constitution-making is substantial but, until recently, gender as an imperative of design has received little attention, and most analyses have been narrowly framed.1 Even giving ‘constitutional’ its broadest compass – extending beyond the legal instrument, to institutions of governance and relations between the citizen and the state – we rarely find gender as a factor of which to take account, let alone as a lens through which to view constitutional design broadly. Even the conceptualisation of what is at stake may be missing. Neither the Forward, nor any of the thirteen contributions to a 2009 symposium issue of the Texas Law Review ‘What, If Anything Do We Know About Constitutional Design?’ identifies gender as an issue for constitutional design or gender equality as a principle informing design choices. None acknowledges women as a design constituency (although several consider ethnic, religious, or cultural minorities as subjects requiring dedicated attention).2 One chapter alone, out of fifteen, in a 2008 collection on Constitutional Design for Divided Societies¸ acknowledges gender as a divider (indeed a ‘deep fault line’ challenging provisions for constitutional equality (Murray and Simeon 2008: 417)). There are many other examples – monographs, symposia or collections on constitutional design – where gender as a referent is entirely missing, and where women, if acknowledged at all, are only listed as a sub-set in a taxonomy of design challenges.3 In the large body of theoretical writings on constitutional identity, legitimacy, and constituent power – all normatively implicated in constitutional design...

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