Le choix: un paradigme, ses problèmes et des solutions pour penser le multiculturalisme et les femmes

This thesis tackles the question of minorities within minorities (or “internal minorities”): how can we protect the rights of minority groups (in particular religious minorities) without infringing the rights of minoritized individuals within these groups (in particular women)? In a preliminary chapter, I ask whether this issue can be raised in a context of widespread and growing intolerance towards religious minorities and, if so, whether I can raise it, notwithstanding my position as a “White Western Feminist,” a member of the liberal, secular majority and the holder of numerous privileges attached to these titles. Relying on Kimberlé W. Crenshaw’s definition of intersectionality and on feminist standpoint theories, I answer both these questions in the affirmative. However, I propose a reflexive methodology aimed at reducing the risks associated with my speaking on this topic.In the first—theoretical—part of my thesis, I explore philosophical answers to the question of internal minorities. I show that these answers are centered on arguments about women’s choices (chapter 1). First, their choice not to flee oppression by leaving their group (the “exit right” argument). Second, their choice to be a member of the group and to engage in potentially or effectively oppressive practices within it (the “choice simpliciter” argument). Third, their collective choice of whether or not to reform these practices (the “change from inside” argument).These arguments and the paradigm on which they rest, which I call the “choice paradigm,” are open to criticism from a feminist point of view. First, they are built on a series of rebuttable assumptions, which keeps the debate in an artificial and misleading state of abstraction. Second, they appeal to the idea and ideal of respect in a manner that prevents moral critique, forbids legal intervention and conflates different variables (the individuals, their choices, the practices chosen and the cultures from which they emanate). Third, they rely excessively on women’s alleged responsibility towards themselves and for their “choices.”In light of these problems, but keeping in mind the emancipating potential of the choice paradigm, I search for ways to reframe it using feminist theory (chapter 2). In particular, I compare the potential found in feminist notions of relational autonomy and adaptive preferences, ultimately opting for the latter, while keeping in mind its shortcomings.In the second—practical—part of my thesis, I turn to a case study: that of religiously-based Alternative Dispute Resolution (ADR) in family law. First, I summarize ADR’s oppressive potential for women in family law, in both religious and secular forms (chapter 3). Then, I present one legal answer to the question of internal minorities in such context—the Boyd report (chapter 5)—as well as the legal precedents on which it relies in Canadian family law (chapter 4). I show that both the report and its precedents embrace the choice paradigm and thus are subject to the same criticisms. Finally, I propose an alternative model to theorize and to regulate ADR in family law (in both religious and secular forms), using the feminist notion of adaptive preferences (chapter 6)

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