Upcoming EASC Lecture

Thursday, Nov. 17^th, 12 – 1:00, Center for Constitutional Democracy, 624 E. 3rd Street (across from Law School)

Constituting and Contesting Equality

It is often assumed that feminism is a Western product and that the inclusion of the gender equality provision in most East Asian constitutions is part of the modernization project under which Western values of equality, freedom and justice were introduced to East Asia and established as common constitutional values. It is also constantly argued that the failures of gender equality laws in promoting social change in East Asian societies is a demonstration of the fundamental contradictions between East Asian traditions and Western feminist values. These arguments presume an interlocking set of dichotomies: East v. West and tradition v. feminism. While there have been many scholarly attempts to move beyond these dichotomies and to reassess the phenomenon of legal transplant in Asia, feminist engagement in constitutional design remains largely unexamined in this line of scholarship. The purpose of this paper is to conduct a critical investigation into feminist constitutional activism in Taiwan, with the hope that such investigation will reveal women’s agency in contexts, demonstrate their involvement in the formation of public consensus on constitutional values, and provide counter-evidence to refute the claim that gender equality is a Western notion foreign to Asian societies.

My study of feminist constitutional activism in Taiwan will focus on the making and remaking of the gender equality provision. Siding with feminist constitutional scholar/historian Reva Siegel’s suggestion to treat the text of the Constitution as object of social movement struggle which makes the terms of American constitutional tradition amenable to contestation by mobilized group of citizens, I consider the text of the constitution as a site of contestation and examine how feminists had made interpretive and amendatory claims on the constitution’s text, especially through constitutional litigations and advocacy for a constitutional amendment. In the early 1990s, feminists in Taiwan had mobilized for constitutional change, advocating for a constitutional amendment of substantive equality, which emphasize structural inequality based on sex and encompasses positive to ameliorate disadvantages. Their campaign to change the text of the constitution is both an attempt to declare women’s membership to the constitutional community and an effort to reshape the meaning of equality in the constitution. Following the passage of the constitutional amendment of substantive equality in 1994, feminists mobilized to give meaning to equality by mobilizing the constitutional doctrine of equality in a series of constitutional litigations, which mobilization demonstrated feminist involvement in the interpretation of the constitution. Through making claims about the constitution, feminists had made women participatory citizens in the combat against social inequality and the pursuit of an equal society, and had, in this process, produced a new Asian tradition of feminist struggle against inequality.

This study of feminist constitutional activism will also be an engagement with the subject of law and social change, that is, the usefulness of law as a vehicle for social change. Rather than emphasizing on effectiveness of law and discussing the gap between law-in-books and law-in-action, I will focus on the significances of making constitutional claims in the assessment of social change. I will argue that making constitutional claims are acts constitutive of and reflective of a constitutional culture, meaning the network of understandings and practices that structure a constitutional tradition. The emergence and prevalence of feminist constitutional claims is an indication of the change of constitutional culture, therefore a form of social change.