A brief case for rights-minimalism in developing countries

Egyptians are on the verge of civil war because they cannot seem to agree on the text of a constitution.  For the most part, the disagreements that threaten to tear the country apart center around rights, more specifically, the role of religion in the modern Egyptian state.  This debate essentially finds most traction in two contexts, gender rights, and freedom of religion.  According to most liberal political theorists, such rights should not be controversial, and indeed, post-World War II constitutions routinely include rights that track the UN Declaration on Human Rights.  it is no surprise therefore that groups such as Human Rights Watch have criticized the draft Egyptian constitution for its failure to meet international norms with respect to these rights.  At the same time, however, Muslims have had an uneasy relationship with the universal normative claims made in the name of international human rights laws. It is easy to criticize Egyptians for failing to meet these standards, but much harder to help them reconcile their own historical, religious and cultural norms with what contemporary conceptions of rights seems to require.  In my academic work, I have tried to show one way to go about trying to solve this problem.

But reconciliation between Islamic law and international human rights law is not my concern here. Rather, it is to make a limited case, on distributional grounds, that at least with respect to gender equality, less may be more.  One of the basic problems that has prevented the development of an effective state of Egypt committed to the rule of law is the ease by which the privileged can avoid relying on the law to achieve their aims, and the inability of the state to impose its will on those who desire to defy it.  This problem is particularly acute in the realm of gender where there might be a particularly large gap between the law’s normative demands for non-discrimination, and society’s casual acceptance of gender discrimination or religiously-motivated indifference to state laws.  Rights in such a context can often facilitate the withdrawal of the privileged from active participation in society.  If the law is more effective, and if the privileged are potentially subject to discriminatory norms resulting from majoritarian legislation, they may have more of an incentive to invest in the human development of the less-fortunate so that they too can appreciate the benefit of gender egalitarianism.  On the other hand, when gender equality is only meaningful for the well-off, and it is given to them, they have, to that extent at least, less of an incentive to participate actively in public life and social reform.