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Friday, October 10, 2003
2003 - 2004 Williams Project Scholars Speakers Series and the UCLA School of Law Faculty Colloquium

Madhavi Sunder (UC Davis School of Law, visiting Cornell)
"The New Enlightenment: Women, Gays, and the Quest for Freedom Within Religion and Culture, Not Just Without Them"
2:00-3:30 pm.
Tower Room, 4th Floor, Hugh and Hazel Darling Law Library

Please join the Williams Project in welcoming in Professor Madhavi Sunder as she presents her paper, The New Enlightenment: Women, Gays, and the Quest for Freedom Within Religion and Culture, Not Just Without Them, as part of the 2003 - 2004 Williams Project Scholars Speakers Series and the UCLA School of Law Faculty Colloquium.

* Click here for Professor Sunder's cover memo regarding her talk (also available below).
* Click here to download Professor Sunder's talk, which is comprised of two parts:
- an edited version of her Cultural Dissent article (Microsoft Word, 456 KB), and
- the entire Piercing the Veil article (Microsoft Word, 525 KB). To shorten the reading of the latter, Prof. Sunder suggests that colloquium participants focus on the Introduction and Parts I, III, and IV.B.

Currently a Visiting Professor at Cornell Law School, Madhavi Sunder is a Professor of Law at University of California, Davis School of Law. She holds degrees from Harvard College (A.B. 1992, magna cum laude) and Stanford Law School (J.D. 1997). Professor Sunder areas of expertise include intellectual property, women's international human rights, cultural studies, development and globalization. Her publications include

*  Note, Authorship and Autonomy as Rites of Exclusion:  The Intellectual Propertization of Free Speech in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 49 STANFORD L. REV. 143 (1996);
*  Intellectual Property and Identity Politics: Playing With Fire, 4 J. GENDER RACE & JUST. 69 (2000);
*  Cultural Dissent, 54 STANFORD L. REV.. 495 (2001), which was awarded Honorable Mention, Association of American Law Schools (AALS) Scholarly Paper Prize 2002; and
*  Piercing the Veil, 112 YALE L. J. 1399 (2003).

For more information, please contact the Williams Project at (310) 267-4382 or williamsinstitute@law.ucla.edu.

MEMO
To: UCLA Williams Project workshop participants
From: Madhavi Sunder Cornell Law School (Visiting Professor) UC Davis School of Law (Professor) Date: October 1, 2003 ________________________________________________________________________

I hope to use this forum to help begin to develop a trilogy of works (two published, one in-progress) into a book titled The New Enlightenment. I have attached an excerpt from the first part of the trilogy, Cultural Dissent, published in the STANFORD LAW REVIEW, and the entire middle part of the trilogy, Piercing the Veil, recently published in the YALE LAW JOURNAL. To shorten the read of the latter, feel free to focus on the Introduction and Parts I, III, and IV.B.

From gay bishops to Muslim women seeking equality within Islam, individuals today seek rights within culture and religion, not just without them. These claims represent a sharp break from the antidiscrimination strategy of the old Enlightenment, which sought civil and human rights in the public sphere, but accepted, and even expected, discrimination in the private spheres of culture and religion. I identify these claims as an effort to create a “New Enlightenment,” one that extends old Enlightenment norms into the private sphere. Increasingly, individuals find the options of the old Enlightenment wanting. Those options are premised on a thin theory of liberty (because only leaders, and not members, have the right to define and create culture), and a thin theory of equality (because they ignore the cultural contexts that remain important to individuals even in the modern day).

The New Enlightenment offers a blueprint for confronting burgeoning cultural conflicts—from Iraq and Afghanistan, to Nigeria, India, and Pakistan, to the United States—between equality and modernity, on the one hand, and religion and culture on the other. The New Enlightenment confronts the New Sovereignty of religion and culture, seeking law and rights within these traditionally extralegal spaces. A number of contemporary trends—globalization, modernization, liberalization, postcolonialism, the Internet, postmodernism, and individualism—fuel this engine of change. But law, premised on old Enlightenment norms that value diversity across groups but not within them, more often serves the efforts of traditionalists to stymie change than it serves the reform efforts of cultural dissenters.

The New Enlightenment will tell this story through revisions of my three law review articles, along with a new Foreword and Afterword. Below I outline briefly my three papers—each of them centrally devoted to a case study—highlighting this phenomenon. I then raise some of the questions that remain about those papers, which will require further development in the book.

A. The Trilogy

Cultural Dissent, 54 STAN. L. REV. 495 (2001), identifies the rise of new claims to broaden the traditional terms of cultural membership in response to globalization, the Internet, and modernity. While traditional, non-Western societies often spring to mind when one hears the term “culture,” the paper offers the gay Boy Scout controversy in the U.S. as an example of cultural dissent—and what happens when law intervenes to promote cultural survival, instead. The paper begins to make a normative case for law’s promotion of dissent within associations, not just across them as traditional liberal theory advocates.

Piercing the Veil, 112 YALE L. J. 1399 (2003), instantiates cultural dissent on a global scale with its focus on women’s human rights activism in Muslim communities. It characterizes such claims as part of a “New Enlightenment,” in contrast to the antidiscrimination claims of the old Enlightenment. Perhaps most importantly, it considers legal strategies for operationalizing the New Enlightenment.

My current work-in-progress, IP³, ends the trilogy with a case study of indigenous peoples’ claims for intellectual property in their traditional knowledge and genetic resources. The Article critically engages these claims as one result of the convergence of identity politics, the Internet Protocol, and intellectual property. This paper goes further than the previous two in acknowledging the reality of unequal cultural power in the world and the need for some legal regulation of culture flows (through, for example, intellectual property law). Unlike current intellectual property scholarship, which takes an increasingly binary approach of “intellectual property versus the public domain” that would dismiss new indigenous claims for intellectual property, I recognize these new claims as efforts by individuals formerly the objects of property to now be property subjects, with some control over their cultures and the commercial value that derives from cultural commodities. At the same time, the paper cautions that such rights must not be deployed to secure cultural isolationism and internal despotism. It seeks to offer legal solutions that do not insulate cultures from global discourse and the New Enlightenment.

B. What Is to Be Done?

Several issues remain ripe for further development of the New Enlightenment idea. A first set of questions centers on my underlying conception of cultural dissent. Should law’s promotion of cultural dissent rest on an autonomy theory (dissent for its own sake), a democratic/marketplace theory (dissent to foster diversity), or an antisubordination theory (which may prefer some forms of dissent over others)? In answering this question, I will need to apply my theory to two cases: the illiberal dissenter and the interloper. Should they, too, have standing to assert legally cognizable dissent claims? Finally, instead of freedom within culture and religion, why not rely exclusively on freedom without—through secession and reconstitution? That is, should the remedy for cultural or religious despotism be limited to schism? Why shouldn’t gay or pro-gay Scouts (or gay or pro-gay Episcopalians) leave to form their own association?

A second set of questions focuses on how law should operationalize the New Enlightenment. This is the question of the kind and extent of legal intervention I envision. Up until now, I have sought to highlight the presence of cultural dissent and to describe how law, in eliding it, also quashes it. I suggest that in recognizing cultural dissent, legal decisionmakers will find it difficult to continue to side with fundamentalists, and may thereby open up cultures to allow more liberty and equality inside them. Admittedly, this approach is largely passive, envisioning the law stepping in only when dissenters or traditionalists affirmatively make claims before it. But why not go further? Does not the New Enlightenment compel an affirmative right to be free of discrimination carried out in the name of religion and culture? Should law offer women denied ordination as clerics in the Catholic Church a cause of action?

I look forward to our discussion.