Gender - Addressing the Public/Private Divide

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What types of efforts have acknowledged and remedied the public/private divide?

I - INTRODUCTION

The Western legal tradition sees the world as composed of two spheres: the public, where law may regulate actors, and the private, where the law does not apply[1]. Because women have long been associated with the private sphere, this division has historically excluded women from the protection of law.

Human rights law initially maintained the public/private divide, much to the detriment of women. The first women's rights treaty began to break down the barrier between public and private, clarifying that states must ensure women's rights in all areas of life. Advocacy on violence against women most strongly challenged that classical legal divide, and there is now an international consensus that states are obligated to exercise measures of 'due diligence' in preventing and responding to violence against women, even when the perpetrator is a non-state actor.

II - THE PUBLIC/PRIVATE DIVIDE IN INTERNATIONAL LAW

The public/private division originates from classical liberal political philosophy[2], in which the world the public, political sphere is the realm of the government, while the private, apolitical sphere is that of family, home, and sexuality[3]. The king or state can use laws to regulate the public sphere, but the private sphere is theoretically immune from legal regulation[4].

According to the liberal tradition, the two spheres also correspond with the two sexes: the public is the realm of men, the traditional breadwinner assumed to be the rational and political sex, and the private is the realm of women, the irrational and natural sex.[5]

The gendered nature of the public/private divide in the Western legal tradition has had profound consequences for the rights of women. Feminists argue that the dichotomy has both excluded women from the public arena and reinforced their status as a second-class group.

First, as Hilary Charlesworth contends, sexist laws have directly discriminated by "exclud[ing] women from the public sphere - from professions, from the marketplace, from the vote" [6]. Second, the law has failed to regulate much of what takes place in the private sphere. A failure to regulate "does not signify...neutrality", argues Charlesworth, explaining that a state's failure to criminalise marital rape, for example, "supports and legitimates the power of husbands over wives"[7].

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