Overcoming Business as Usual: The Past and Future of Legal Barriers to Women's Empowerment

Over the past century, women have encountered numerous legal barriers to their development, including entering into the world of business and consolidating their financial independence. This paper considers the lessons of the past and seeks to identify future trends. One constant theme throughout the years has been the frequent disconnect between laws empowering women and their weak implementation, or total lack thereof, a situation that is generally referred to in the literature as the divide between the de jure and the defacto. As we review some milestones, we will also reflect on country examples of notable progress; regrettably, these same countries today appear to present a legal environment which may be turning backward. The gains made in advanced economies (such as the United States) may be in jeopardy, while those in regions like Latin America seem to be moving down a more progressive path, toward greater equality through law reform and stronger alliances among an active civil society. One clear trend over the past century is that women and the law seem to have an unpredictable relationship, often subject to political winds and societalor cultural norms in a particular country or at a given time. We not only examine how the law treats women and the role played by the international development community, but also study how women have used the law once they are able to understand and exercise their rights.

In the field of development, there is no question that most of the world's poor continues to be made up of women and their children. The international development community recognizes that unless the needs and capacity of women are addressed, be it through specific, targeted interventions or a broader "gender mainstreaming" across sectors (e.g., education, agriculture, private-sector development), poverty reduction cannot be sustained.¹ Whether we look back to the Canadian women's suffrage campaigns of the early nineteenth century or to more recent actions for sustainable development in India, women's development has been notably uncoordinated and requires the involvement of various levels of engagement—global, national, state, and local. While seemingly working toward the common goal of confronting the challenges of entrenched patriarchal societies, these different levels have also highlighted diverse, if not conflicting, interests based on race, class, culture, religion, and sexual orientation.² Further contributing to disparate agendas a century ago was the marked distinction between women living in the developed or industrialized world and those in the "third world" (as it was often referred to until the early 2000s), or even those still living under colonial rule. Women's empowerment, like other social causes such as the environment or indigenous rights, was a "back-seat issue" that needed to wait as forces for freedom joined together in the more pressing fight for independence.³

Strategies for addressing barriers to women's access to finance—abolishing unequal inheritance laws, redressing limited opportunities in the labor market, or changing the response of government agencies to domestic violence—were simply not seen as priorities to achieve a country's economic and social development. Even the renowned public interest–focused Law and Development Movement of the 1960s, led by US-based law schools, the US Agency for International Development (USAID), and the Ford Foundation, did not seek to enhance women's access to justice specifically; the movement instead sought to bring about social change through class action suits aimed at improving housing, health care, and legal aid for the poor more broadly. The focus was on using the law to help poor individuals in developing ountries, but not necessarily poor women.⁴

Women's concerns eventually began to take on a more central role in international development owing to an evolving international human rights movement and economic analysis that recognized gender equality mattered not only in its own right, but also because it was "smart economics."⁵ International organizations such as the United Nations and the World Bank declared that offering better conditions for women could increase a country's productivity, strengthen respect for human rights, and make public institutions more efficient...