Edited by Tom Ginsburg and Rosalind Dixon
Chapter 2: Drafting, Design and Gender
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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