Too few questions were asked
Further to the discussion of multiculturalism and autonomy for ‘communities’ and family law – Martha Nussbaum’s ‘The Feminist Critique of Liberalism’ is relevant throughout, and particularly relevant in this bit (Sex and Social Justice, pp 63-4):
[A]s many feminists have long pointed out, where women and the family are concerned, liberal political thought has not been nearly individualist enough. Liberal thinkers tended to segment the private from the public sphere, considering the public sphere to be the sphere of individual rights and contractual arrangements, the family to be a private sphere of love and comfort into which the state should not meddle. This tendency grew, no doubt, out of a legitimate concern for the protection of choice – but too few questions were asked about whose choices were thereby protected. This means that liberals too often failed to notice the extent to which laws and institutions shape the family and determine the privileges and rights of its members.
Compare that to, again, Taner’s
[The state] leaves the internal affairs of communities alone. Particularly areas such as family law become the domain of quasi-autonomous communities. After all, if devout Muslims feel that the ability to communally follow sharia law is essential for them to live their religious commitments properly, well, why not? Why interfere?
Because families, especially in ‘communities’ that feel that the ability to communally follow sharia or ‘Catholic teachings’ or other religious ‘law’ is essential for them to live their religious commitments properly, can have differences in power and hence in rights, freedom, ability to choose, and all such liberal shibboleths.
Furthermore, family law, which is what Taner specifies, is not a private sphere of love and comfort; it’s what people resort to when there is disagreement. If all is well, family law is not needed, and it’s beside the point. Family law is there to adjudicate who gets what. It’s there for when the members of the family can no longer agree – so it is no longer an area of voluntary agreement or commitment or choice – it’s an area of coercion. People have a cognitive bias to be over-optimistic; people can be blithe about agreements and commitments when starting out to establish a family, but that doesn’t mean they stay blithe forever. A liberal state will attempt to treat all members fairly; religious law is a different kind of thing. That’s ‘why interfere.’
Remember that story on ‘Islamic marriage contracts’?
Why do Pakistani women agree to marriage contracts without scrutinizing them first and making sure they won’t be sorry later?…My soon-to-be husband had been briefed by the religious scholar presiding. He had also read the marriage-contract papers in detail, making the additions and cancellations he wanted. But I hadn’t seen the document. When I had asked to, my mother had rebuffed my request, saying there was no need, since she had already gone through it. When I told my fiance I wanted to discuss the contract with him, he wondered why I didn’t trust him to do what was best for us.
Nussbaum goes on (p 65):
Liberal reluctance to interfere with the family has run very deep; dispiritingly, many liberal thinkers have failed to notice that the family is not always characterized by a harmony of interests. No model of the family can be adequate to reality if it fails to take into account competition for scarce resources, divergent interests, and differences of power…
But notice that, as Mill already argued, what we see here is not a failure intrinsic to liberalism itself. It is, in fact, a failure of liberal thinkers to follow their own thought through to its socially radical conclusion. What is wrong with the views of the family endorsed by [Gary] Becker, Rawls, and others is not that they are too individualistic but that they are not individualistic enough…[T]hey fail to ask rigorously their own question, namely, how is each and every individual doing?
Taner is making the same mistake.