SJFE : Women and Law in Europe

SOCIAL CITIZENSHIP - THE NORDIC MODEL?

April 1997 (english, french)

Kevät Nousiainen and Anu Pylkkänen (Helsinki University)
E-Mail : anu.pylkkanen@helsinki.fi & kevat.nousiainen@helsinki.fi

Human rights and women's rights in the Nordic countries

The aim of this paper is to present the Nordic perspective on what could be the feminist analysis of the construction of rights. It is both a historical and systematic analysis that we would like to develop into a "tool" for the comparison of different European legal systems. We would also like to ask a question about the human rights' situation in the European Union, especially as concerns the importance of social rights for democracy and equality. In fact, the European Parliament has recently accepted Claudia Roth's Report on the human rights situation (the President of the green coalition), that seriously criticises the present situation. According to the report, much more attention should be paid than is the case right now, especially to subjective social rights, social security and human dignity. The leftist parties were in favour of this conclusion but the conservatives rejected it. It should also be noted that in the Nordic countries, egalitarian developments are to a large extent due to long periods of social democrat governments, and attitudes seem to be divided along the traditional left/right divisions.

For example, the conservative Finnish members of the European Parliament were amongst those who condemned the report. But we think that there will be an increasing need for this kind of discussion in the future : how can the European Union secure more equal rights for all its citizens, how can it avoid the danger of the neoliberal tones of the Common Market and economy being over represented in political discourse ? The economic changes and the move to federalist policy seem to pose a threat especially to women's rights and especially in those countries were gender equality is based on the welfare state and public egalitarian tendencies.

History : the principles and models of citizenship

In the 17th and 18th century social contract theories, the starting point was that only men had the citizen status - men as a fraternity (Hobbes, Locke, Pufendorf, Kant). An abstract principle of citizenship was based on the concept of an autonomous individual who was a coherent, self-reflective and disembodied subject, completely capable of articulating and advocating his interests and without restrictions or responsibilities which would prevent him from exercising full self-determination.

Women, on the contrary, lacked the status of subject because they were assumed to be determined by their "nature" as bodily creatures, a domesticated species without the same possibilities or capabilities for action in civil society and the market as men had. A multiplicity of theories about qualitative gender differences started to flourish at the same time as an abstract idea of subjectivity and citizenship was developed. When male individuals were considered to be the primary actors in the civil, political and judicial domains, ideas about a fundamental femininity became more common (Rousseau, Comte, Hegel).

Egalitarianism did not signify a parallel status of men and women, not even during the French Revolution, the declaration of equal rights and the legal reforms such as the right to divorce notwithstanding. On the contrary, the republican mother was idealised, and the republican patriarchal model was later enforced during Napoleonic era. In fact, the Revolution had but a single aim : abolition of privileges. As Carole Pateman has shown, the rhetorics of universal legal rights did not mean equal rights for the sexes but reinforcement of individual rights for modern male subjects, including access to women. What characterised the status of rights was their origin in the public sphere - in the private, there were no rights but rather social and moral elements, and of course the "private" was a domain reserved to women.

The diverging concepts of rights and citizenship

Just much as the spheres were distinct, the concepts of rights and citizenship also diverged in the 17th century proto-liberal classical thinking. The rhetoric of rights and exercise of free rational will characterised the public sphere, whereas natural tendencies were supposed to explain the developments in the private. In Anglo-Saxon legal thinking, it was utilitarianism that characterised the ideas of the private and the public/private split : integrity and freedom of private life against state intrusion. But at the same time, women were expected to act, in accordance with their nature, in a more communitarian way, devoting their time to the well-being of others. On the other hand, the French, German and Swedish theories about the relations of public and private were more statist. The family was seen as separate from the state, but in close connection with it : new citizens were produced in the family where their primary care and education was secured. An ego constitution was also supposed to be more or less republican - at least the individual did not exist a priori to the community.

The division of spheres

The division of spheres, or the public/private split, has always characterised the discussion of rights. It is exactly this division that has to be overcome so as to achieve real equality. We must, however, bear in mind that there are two ways of defining equality.

In the classical (European) tradition one emphasises the importance of liberties, whereas in the Scandinavian understanding of rights their social character is dominant : an idea that freedom and full citizenship of an individual in all levels of society is dependent on and requires a social safety net. It can be compared to communitarian thinking, understood as a "community first" idea, but, on the other hand, the welfare state is an important factor in this construction (which would not be the case among the communitarian theorists). We think of a whole people as a community, and as we share a rather homogeneous thinking of social justice, it is easy to rely on the state for promoting welfare and social rights connected to citizenship.

In Scandinavia, the needs of the individual are focused, whereas in Anglo-Saxon communitarianism it is up to the individual giver to decide and define what would be the "good life" of the one who receives the care. In general, for us it is not a question of autonomy of individuals as such, but of securing their material conditions to be full citizens. In addition, in the classical thinking nearly all caring activities are considered to belong to women (who then got support through the family breadwinner), whereas Scandinavian universal social rights include all people irrespective of their family status. Women and families are not officially expected to bear the largest responsibility for care, even if this is usually the case in practice.

The welfare state : a promoter of integration for women

In modern societies, it is indeed the social sphere (or third sphere not meaning third sector if understood as voluntary activities) that has changed the traditional public/private distinction. For example Hannah Arendt thinks that even production is in fact socially produced although it is formally defined as "private". I

n Scandinavia, this is the case especially in the labour market. The regulation of waged labour is more corporatist than anywhere else - rather than public or judicial - because the working conditions are in general defined in collective agreements. Also the combination of work and family has been a big social issue throughout the century. As both modernisation in general and the emergence of the nuclear family were late and parallel developments, family policies were strongly connected with and based on the early welfare state. Because of the full legal capacities of women and their important working role there were pressures to create systems that would make it possible for women to be both workers and mothers.

In Scandinavia, it is now customary to have several mechanisms that help women live the life of men. For example, care is organised through social services, where women are both professional carers and the clients who benefit from these systems. This has also signified changes in reality. Women work like men, their education is in general better than that of men and Finland is perhaps the only country in Europe where women with small children work full time (which does not mean that domestic work is in any way less demanding than elsewhere, as men's de facto responsibility for house work has not significantly increased). Estimated by such indicators as integration in labour force and education, equality is well advanced, but problems are still great as concerns e.g. the wage gap.

The egalitarian policies since the 1970's have directed the society to a dual-carer model, where both parents are waged labourers and breadwinners. At the same time the social sector has increased and supported such a change. This link makes women vulnerable whenever the public sector diminishes its investments in social services. Also the wage gap is constantly at least 20% despite several equal pay provisions, and women's unemployment is also increasing because of the reductions in public expenditure.

The lure of egalitarian rhetorics

Until today, welfare liberalism has not been criticised - and why should it have been as its results have been relatively good ? But as welfare is declining, one is compelled to think that the classical distinction between public and private is still behind legal and political thinking, however neutral and egalitarian it may overtly be. Social rights still have lower status than political rights or liberties, despite the fact that they are written into the 1995 Finnish Constitution. Rights are all the time considered either as public (liberties, political rights) or private (protection of human life and individual property), but the social element does not seem to fit into these categories or judicial theories. The seemingly egalitarian and neutral rhetorics have hidden the fact that whenever responsibility for care is not divided through the state policies, it is women who have the ultimate responsibility for primary well-being. The division of responsibilities between women and the state, or between women, men and the state, seems even to lack deep-rooted judicial relevance. In Scandinavia as in the other parts of Europe, this seems to be the eternal problem.

The "social contract" between women and the state

In Scandinavia, the "social contract" between women and the state is called "gender contract", so as to define the equilibrium between women and the public sphere. But this contract is made only between women and the state, and men simply get all the benefits. There are no sanctions for men who neglect their responsibility for care, whereas all reductions in social policies immediately weaken the position of women. It has not yet become of vital importance for men to think how a just division of caring responsibilities could be obtained. Women are given certain liberty as the service sector shares the caring burden, but at the same time women pay a high price for this by being remunerated much less for their labour and by being vulnerable objects of the fluctuating welfare state. The state has not been able to prevent many types of exploitation of women. Nordic women often think that they could renegotiate the contract, but this hope seems to unrealistic in the present political climate.

A closer interconnection of social and political rights

Because of this, we would like to start a discussion on the possible changes in the welfare and rights' rhetorics. We would like to strengthen the social element and universal social principles in the legal theories - universal in the sense that women's rights should be taken seriously and should have a strong social emphasis. We think that all traditional rights are based to some extent on social constructions, and are then categorised as either public or private. Only the intimate relations should be treated more from the "liberty" point of view - quite a reverse to the traditional approach. For us, although family undoubtedly is the site of primary care and child socialisation, it is indeed the protection of ego constitution, human dignity and integrity as well as the right to self-determination that should figure more in intimate relations - this protection being something that women have never properly enjoyed.

At all other levels of society, rights should be socially defined even if they naturally are individual and not collective rights. But it is important to realise that individual and social elements are intertwined and the situation at each level is in many ways dependent on the situation at others. To be able to be a good citizen and live a good life one needs several social systems : e.g. education, social and public services, general infrastructure. It is the responsibility of the State to secure all this to all citizens. This is at least how we see the situation in Scandinavia ; the State is considered to be something good and it has a strong legitimacy. Nevertheless, the distinctions between the spheres has always hidden women's special interests. That is why we want once again to emphasise that the following categories of rights cannot be regarded as separate but they have many things in common, in fact each of them is based on another : political rights on social rights and so on.

Alternative categorisation of rights

o State Public and civil rights - liberties in the classical sense - but also the state's responsibility to secure all citizens access to social rights (including regulation of the bodies that produce rights)

o Social sphere - social rights - The public sphere : civil society, media, associative sectors, voluntary agency, education - Production : a) private production (production of children, domestic work, waged labour, production in the market - things that have direct exchange value) b) social production : caring-production, social services, social security both collective and individual, infrastructure (transport, street lights... - things without direct exchange value (or so far considered to be "public" and not private goods for sale)

o Intimate relations - protection of integrity Personal relations, autonomous life, ego constitution, reproduction

Select bibliography on gender and social citizenship

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Linda ALCOFF & Elizabeth POTTER (1993) : Feminist Epistemologies. NY ; Routledge.

Seyla BENHABIB (1992) : Situating the Self ; Gender, Community and Postmodernism in Contemporary Ethics. Oxford ; Polity Press.

Jean BETHKE ELSHTAIN (1981) : Public Man, Private Woman ; Woman in Social and Political Thought. Princeton NJ ; Princeton UP.

Gisela BOCK & Susan JAMES (eds) (1992) : Beyond Equality and Difference : Citizenship, Feminist Politics and Female Subjectivity. London ; Routledge.

Judith BUTLER & Joan SCOTT (1992) : Feminists Theorize the Political. New York ; Routledge

Teresa De LAURETIS (1986) : Feminist Studies/Critical Studies. Bloomington ; Indiana University Press.

Elizabeth FRAZER & Nicola LACEY (1993) : The Politics of Community. A Feminist Critique of the Liberal-Communitarian Debate. Harvester.

Catherine HOSKYNS (1996) : Integrating Gender. Women, Law and Politics in the European Union. London ; Verso.

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Sylvia WALBY (1990) : Theoretizing Patriarchy. Oxford ; Blackwell.

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You can also read more about Basic Conceptions of Women's Law in Finland