Dr. Patricia Hughes

Chair of Women and Law, Faculty of Law
University of New Brunswick

In 1977 Susan R. Peterson published an article called "Coercion and Rape: The State as a Male Protection Racket". This article talked about rape as a practice, a state sanctioned and reinforced practice, a form of activity specified by a system of rules. She regarded rape as a social coercion, not an individual action but an activity used by men to reinforce and perpetuate their power. This coercion applies solely to women through sexual differentiation and precludes women from membership in civil society, lacking fundamental protection by the state.

In her paper, Professor Wright refers to the gendered distinction between the mind and the body. It is not only a gendered distinction, but also a class distinction, an ability distinction, a sexual orientation distinction, ect. At the same time Professor Wright raises the threshold postmodern question of identity and the determination based on otherness. It is this otherness that grounds human rights when those who are excluded are judges similar enough to those enjoying rights, by those enjoying the rights they are permitted to enter the circle of rights. The whole system of discrimination theory is based on the idea somehow that one earns the right by be being sufficiently consistent with the demands of civil society. As Catherine MacKinnon states: "The more women look like men, the more likely they will be granted a remedy in discrimination law because then different treatment looks wrong". Expanding on this further, it depends which men they look like. Those who will be granted a full discrimination remedy will those white women who look like white men.

Until we understand the source of human rights theory in the system which dominates, which at present can be considered the western liberal theory, then human rights will remain limited. Discrimination and human rights theory are integrally related to the contract theory - the theory that men entered into a social contract to protect themselves, this of course is a fiction.

Contract theory is both geographically and culturally limited. However, when we assess other societies we are unable to get outside of those contract theory boundaries, and I believe that this needs to be addressed as a fundamental threshold question.

The original social contract was a rational activity meant to overcome the disadvantages of the body. Entering into civil society is meant to be a rational activity, a reflection of rationality. Those who are defined less by rationality then by emotion or by the physical can not participate fully in that civil society. The fiction of the social contract is a deliberate rejection of nature. It sets up civil society in opposition to nature. To be human then in the western discourse, a discourse which has expanded far beyond its geographically and culturally appropriate boundaries, relates to those preconditions to enter into civil society.

Civility/nature, rationality/emotion, intellectual/physical and mind/body all reflect a dichotomy between those who are capable of engaging fully in civil society and those "who are in society but not of it".

Women generally, but differentially, are externally defined by their body and are subject to violence. Violence against the body does not only say that we are going to control you, but also says that we do not even respect the way we define you. Violence states that you don't have autonomy, and that we are going to control how you are defined. It is a total way of saying that you are excluded, and it seems to me that until we deal with that, we are never going to get past this notion of what "human" means.

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© 2007 Atlantic Human Rights Centre, St. Thomas University