Author: This article is written by Vineetha A A , a sixth semester three year law student at Government Law College, ERNAKULAM. This article is an analysis on the topic ‘Feminist Jurisprudence’.

INTRODUCTION

The soul has neither sex, nor caste nor imperfection. The best thermometer to the progress of a nation is its treatment of its women, There is no chance for the welfare of the world unless the condition of women is improved, Woman has suffered for aeons, and that has given her infinite patience and infinite perseverance the idea of perfect womanhood is perfect independence.” —Swami Vivekananda

Feminism at it’s core is the belief in full social, economic, and political equality for women. Feminism largely arose in response to traditions that restricted the rights of women, but feminist thought has global manifestations and variations.First, let’s understand what feminism is meant to be.

If you search for the definition of “Feminism” in the dictionary, you’ll see; It is the advocacy of women’s rights on account of the equality of the sexes. It is the theory of the economic, political and social equality of the sexes. It is the belief that men and women should have equal rights and opportunities. It is the doctrine advocating all rights of women equal to those of men.

Feminism is all about equality of men and women, and not about “sameness.” So many people put up the argument that women are not the “same” as men and so there can’t be equality. In other words, because their bodies are different and because men and women have different physical capabilities,and that these physical differences mean equality is not possible.

The issue here is about equal rights and equal access to opportunities. Here’s an example: suppose there were two young boys in a school and one was physically weaker than the other. Is it right to deny the weaker boy the same resources and facilities what the other boy enjoy! just because of that he didn’t have the same physical strength as the other boy?

Some people hate the term feminism and feminist movements because they fear that feminism means, men will eventually lose out of power, influence, impact, authority, control, and economic opportunities. Many of them fear that feminism will overturn time-honored traditions, religious beliefs and established gender roles. Also fear that feminism will bring about negative shifts in relationships, marriage, society, culture, power and authority dynamics, in businesses, jobs and economic opportunities and what if when women are on an equal footing with men. All this are their misconceptions.

This article discusses about Feminism, the evolution of Feminist Jurisprudence, basic issues of feminist jurisprudence and also various Schools of Feminist Jurisprudence.

FEMINISM

Feminism is a movement which demands emancipation, equality and liberation of women and stresses the need for a social transformation of law, culture and social patterns which release women’s potential. Feminism can be defined as the self conscious creation and vindication of representation of feminine and the position of women in social reality by women themselves – in contrast to the accepted ‘common sense’ or ‘everyday notions which are taken as imbued with masculine conceptions – and which are aimed at the emancipation of women.

According to Clare Dalton (1987) “feminism is a range of committed inquiry and activity dedicated first, to describe women’s subordination – exploring its nature and extent; dedicated second, to asking both how – thorough was mechanism, and why – for what complex and interwoven reasons – women continue to occupy that position; and dedicated third to change”.

ORIGIN OF FEMINIST JURISPRUDENCE

Feminist jurisprudence is a development from the women’s movement more generally. This emerged in the late 1960s and early 1970s, with writings of Simone de Beauvoir [The Second Sex (1949)], Betty Freidman [The Feminine Mystique (1963)). Germame Greek [Sexual Politics (1970)). Kate Millet, (Patriarchal Attitude (1970)] etc.

The large number of women studying law in USA from 1960s onwards began to question a curriculum which neglected issues of central concern of women; rape, domestic violence, reproduction, unequal pay, sex discrimination, sexual harassment. Most of the leading writers in feminist jurisprudence were studying law at this time or later (i.e. 1960s or later).

Many feminist legal theorists subscribed to the “basic critique of the inherent logic of the law”, the basic principle of the Critical Legal Studies (CLS) movement. In 1983 the CLS Conference devoted a Section of the conference to feminism specifically. A caucus of “Fem-Critis’ emerged at that conference.

The term ‘feminist jurisprudence can be traced to an intervention of Ann Scales at a Harvard Conference in 1978. Her article “Towards a Feminist Jurisprudence” was published in 1981. And Catherine Mackinnon’s article, “Feminism,Marxism. Method and State: Towards Feminist Jurisprudence” first appeared in 1983. Scientific feminism seeks to analyse the contribution of law in constructing, maintaining, reinforcing and perpetuating patriarchy and it looks at ways in which this patriarchy can be undermined and ultimately eliminated.

BASIC ISSUES OF FEMINIST JURISPRUDENCE

The problems that feminist jurisprudence called to address are:

The first is the concrete reality of oppression of women repeatedly- legitimised by legal regulations.The second is the issue of patriarchy, or the system of male authority which structures the institutions and organisational rationality which constitute the oppressive and exploitative relations which affect women; and the third is the question of women’s sense of justice, or what sort of “truth’ is involved in the traditional male argument that women are different from men and have an undeveloped sense of the abstract and impartial objectivity that justice requires.

To address the above issues, the supporters of feminist jurisprudence should;

Highlight areas where the law either legitimizes oppression or the operation of the law effectively treats men and women differently.
Study the epistemology of traditional jurisprudence and try to change the traditional views.
Undercut the structure of abstract masculinity which is depicted as the organizing force of a great deal of social, moral and political thought.
Bring women’s experiences directly into both theorizing and the practice of understanding law in reality.
Seek to illuminate and define the wrongs done to women neglected by traditional perspectives.
Resist common place perceptions of the normality of standards, such as in the conception of equality or the recognition of problems as domestic violence, since these may be standards created under patriarchy.
Try to understand the dichotomies imposed by theory on the analysis of life and to reject as artificial those which claim a naturalness or universality which are based on masculine perspectives and argue that the feminine modes of thought are superior, and so on.
Research what happens to women in the world shaped by patriarchal law.
Challenge the structure of legal thought as contingent and in some culturally specific sense ‘male’, implying the need for some radical changes and revisions than the ameliorative emendations.

Heather Wishik suggests the following seven questions that feminist jurisprudence poses for the feminist inquiry into law:

What have been and what are now all women’s experiences of the life situation’ addressed by the doctrine, process or area of law under examination?
What assumptions, descriptions, assertions and/or definitions of experience – male, female or ostensibly gender neutral – does the law make in this area?
What is the area of mismatch, distortions or denial created by the differences between women’s life experiences and the law’s assumptions or imposed structures?
What patriarchal interests are served by the mismatch?
What reforms have been proposed in this area of law or woman’s life situation? How will these reform, proposals, if adopted, affect women beth practically and ideologically look like, and what relationship, if any, would the law have to this future life situation?
In an ideal world, what would this woman’s life situation mean?
How do we get there from here?

SCHOOLS OF FEMINIST JURISPRUDENCE:

Main categories feminist theories are divided into four schools of thought: liberal, radical, cultural and post modern.

THE SCHOOL OF LIBERAL FEMINISM

The first wave of feminism argued that equality under law amounts to equal opportunities for both men and women. The Liberal feminists fought to attain equal legal subjectivity for women as with male citizens. The early Liberal feminist writers are Mary Wallstone Craft (1778), William Thompson (1825), John Stuart Mill (1989) etc.

Under the banner of liberal feminism women won most of their legislative and judicial victories, including the suffrage, equal pay benefits, access to employment and education, the right to serve on juries and the limited right to choose to terminate a pregnancy.

Williams, Herma Hill Kay, Nadine Taub and the most prominent representative is Justice Ruth Bader Ginsburg. Key notions of legal liberalism are those of neutrality, impartiality and universality, and arguments and legislative provisions had to be framed in such a way as not to contradict these ideas.

According to Scales, feminism proceeds from the principle that objective reality is a myth, with patriarchal myths as projections of the male psyche. She is critical of the US Supreme Court’s equal protection approach to sex discrimination because it makes patriarchy the norm of what is human, the goal being neutrality. She argues that it is necessary to reconstruct the legal system. Scales looks to a feminist jurisprudence which will focus on domination, disadvantage and dis-empowerment rather than one which examines differences between men and women.

According to Robin West, the failure of modern legal theory lies in it’s understanding of what it is to be a human being. Such theory is male dominated because it assumes that individuals are essentially seperate from one another. She argues to the contrary, that woman are connected to other human beings, especially through the biologically based activities of pregnancy, breast feeding etc. West argues for a feminist jurisprudence that reconstructs legal concepts to take account if the realities of women’s experiences. Thus West’s ‘Connectedness’ thesis is essential.

Wendy Williams (1984) a liberal feminist argued that feminists have only two choices : either equality on the basis of similarities between sexes or special treatment on the basis of sexual differences. She favoured the former, since difference always means women’s difference, and this provides the basis for the treating women worse as well as better than men.

Legal Liberalism presupposes autonomous individualism and takes as it’s Central value the notion of separation and freedom; freedom is defined as distance from the ‘ other’ and the social space for the individual to pursue her/his own needs.The fundamental supposition of liberal legalism is that human being experience the world as seperate individuals, unconnected to others unless they so choose; as a result the value that is put forward above all else is the right to pursue our lives relatively free if outside control.

Legal liberalism, however, offers little help in understanding the nature and cause of women’s oppression, and may appear to downplay the real policy struggles which take place daily. Legal liberalism is charged with ignoring the reality of male power and domination in formulating the seemingly neutral principles of liberalism agenda of sexual equality.

THE SCHOOL OF RADICAL FEMINISM

Radical feminists view the existing cultural, social, economic and legal differences between men and women as a product of male domination. Catherine Mackinnon argued in her “Feminism Unmodified” (1989) that feminists should concentrate on identifying dominance. This treats gender equality issue as question about the distribution of power, about male supremacy and female subordination. It is dominance, not difference, that is central to Mackinnon. This conceptualisation enables her to broaden the focus of inquiry beyond the orthodox terrain of work conditions to take in violence, prostitution and pornography. She claims that the dominance approach is the authentic feminist voice: the difference approach, she argues, adopts the view point of male supremacy on the status of the sexes, the dominance approach sees social inequalities from the standpoint of the subordination of women to men.

The consequences of the pervasive male domination leads to conclude that women cannot trust the State. The State is male in the feminist sense, the law sees and treats women the way men see and treat women. The liberal state coercively and authoritatively constitutes the social order in the interest of men as a gender – through its legitimising norms, forms, relation to society, and substantive policies. Not only is the State not to be trusted but the very notion of equality is suspected.

If women want to claim equal rights, they claim only the right to be viewed as men under the gaze of the male State which adopts the standpoint of male power on the relation between law and society. Mackinnon’s argument is at the level of hegemonic understandings, the social inequality which existed in the traditional patriarchal social order has not been destroyed by the legal rights offered by liberalism; such inequality is harder to see and to fight because it is the role of the State not to intervene in the reformation of the social order. The liberty is legitimate if it were true that the genders were actually equal before the law, if the liberties of the social body were evenly distributed; but they are not. The real harm of various assaults on women is the depiction of subordination and objectification.

Mackinnon’s style can be seen from two issues: abortion and pornography. The preachers of liberal thought fail to understand the fact that multitude of factors including social pressure, learning, economic disadvantage, sexual force, inadequate contraception, and weak laws against sexual assault impact so that women do not control the circumstances under which they become pregnant. This structurally forced maternity is a perpetuation of economic, domestic and sexual inequality, abortion is needed to redress a woman’s basic lack of control over the process of reproduction. Similarly, Mackinnon sees pornography as dehumanising traffic in women that sets the standard for the mistreatment of women, engendering rape, sexual abuse of children, forced prostitution, and sexual murder and she does position the pornography in the context of freedom of speech and individual autonomy. The very nature of pornography contributes to, and defines, women’s social and legal inequality.

Mackinnon’s feminism can join with radical criminologists in seeking to redefine ‘harm’. In the criminological arena of victimology recent attempts have focussed upon defining certain types of ‘harms’ beyond those normally recognised. Similarly, feminist writers have focussed on the maleness of legal proceedings, specifically the trial of sexual crimes such as rape. Simply, in the rape trial, the procedure is designed to break down the story of the woman complainant both by subjecting it to vigorous doubt and by implicitly sexualizing it. The victim becomes an object of the male gaze and forced to her ordeal.

Mackinnon argues that the domination of maleness places severe handicaps on women understanding the truth of their own lives; feminist theory is an agent of liberation. If Mackinnon is correct on the power of ideology and hegemony there is no secure way for women to think out their positions and strategy.

THE SCHOOL OF CULTURAL FEMINISM

For cultural Fenianism, male domination is based on the grounding of modern structure of thought on the male experience and the force of violence, but many things of value are lost to humanity by the downgrading of the experiences and perspectives of women. Cultural feminists also emphasis difference and use the rhetoric of equality to advocate change that supports the values of the differences. Cultural feminism endeavors to present the reasoning of the feminine ‘other’.

Carol Gilligan an American educational psychologist is the prominent cultural feminist, and she developed a thesis of a women’s voice and an ethic care in her work, “In a different Voice: Psychological Theory and Women’s Development”, (1982).Gilligan’s work argued that women’s moral reasoning was not inferior, it was simply different, emphassising contrasting values. Women’s judgemnet reached the stage of development, where goodness was equated with pleasing and helping others. This is the result of the life experiences allowed to women and implied that if women had a greater role in the public sphere, they would move onto the higher stages that typify men’s judegement. Her empherial resarch reveals a woman’s voice, a different voice, not necessary inferior to the man’s voice.

Gilligan conducted interviews with college students on identify and moral development in their early adult years, carried out an abnormal decision-making study on the relation between experience and thought and the role of conflict in development and rights and responsibilites, a study on conception of self morality, experiences of moral conflict and choice and judgemnets of hyphothetical more dilemmas.

For Gilligan true maturity for both sexes would be to move away from the absolutes with which they are associated. That is men must move away from the absolutes of rights, truth and faireness, to a realisation of differences between other and self and a recoginistaion that multiple truths exist. Similarly, women must move away from the absolute of care and recognize a claim for equality and rights that transform their understanding of relationships and their definition of care. Gilligan looks forward to ‘a more generative view of human life’ for her ethic of justice of caring (that no one should be hurt) to produce a better outcome. Her conclusion is thus not to produce a separatist sysytem of justice for women, not to replace the ethic of justice with the ethic of caring. Gilligan never suggested that women’s voices were biologically determined or even that they are only found in women.

For mackinnon, Gilligan does not describe what women are, but what women have been socialised to be. Gilligan therefore describes and then rectifies gender oppression. Viewed in this light Gilligan’s work is regressive.

Robin West (1988) cliamed that male legal theorists exhibt a specific form of reasoning because they experience the world firstly and fundamentally as separate autonomous individuals; the foundation of both traditional and critical masculine jurisprudence is a ‘seperation’ thesis.

In Seeking a positive mode of thought and morality in the experiences that women endure cultural feminism develops the connection thesis, but closes off analaysing, the material conditions in which this development takes place. It’s essential truth lies in connection a truth which ought to be universal.

Cultural Feminism is humanism. According to Drucilla Cornell,”Ethical feminism envisions not only a world in which the view point of feminie is apperciated;ethical feminism also sees a world peopled by individual, sexed differently, a wolrd beyond contraction.Through our visions we affirm that should be inherent in the feminine viewpoint is not just power for women, but the redefinition of all our fundamental concepts, including power. Feminine power should not in other words, be separated from different ethical vision of human beings sought after in the feminine, understood as redemptive process”.

A black feminist ideology declares the visibility of black women. Second,black feminism asserts self determination is essential. Black women are empowered with the right to interpret our reality and define our objectives. Third, a black feminist ideology fundamentally challenges the macrostructure of the oppersions of racisim, sexism and classicism both in the dominant society and within movements of liberation. Finally, a black feminsits ideology presumes an image of black women as powerful and independent subjects. Today black feminsits consciously take up narrative tradition while dearcating themselves from feminism in general. Black feminists reclaim a self from the structure of slavery and multiple oppression. Scheduled Castes and Tribes in India are similar to that of the black women in the USA.

THE SCHOOL OF POST – MODERN FEMINISM

The Post- Modern Feminism sees equality as a social construct and since it is a product of patriarchy, one in need of feminist reconstruction, but it warns against searching for a new truth to replace an old one. It denies there is a single theory of equality that will benefit all women.

Post Modernism is the difficulty of accepting any settled position. The feminist movements have not given rise to a dominant perspective and there are many diverse interpretations. Post Modernity encourage one to think in terms of varied social relations and of a multiplicity of social sphere where there are many obstacles and opportunities for advancing liberty and the treatment of self and others as equals.

According to Wayne Morrison, feminists have to recognise their own embeddedness; their complexity. While demanding the traditional perspectives have not faced upto their specific historical context, feminists have often neglected to turn their demand upon themselves. The Post-modern concern with reflectivity causes constant self assessment and complicates all attempts to define an essential identity. Many feminists believe that if they do not see women as a coherent entity then a coherent feminist movement is impossible. But Post-modernity encourages one to think in terms of varied social relations and of a multiplicity of social spheres where there are many obstacles and opportunities for advancing liberty and the treatment of self and others as equals.

CONCLUSION

Feminist Jurisprudence includes the study of different strands of feminist theory and the themes that have emerged and developed within feminist thought, as well as the application of theory to issues that interest members of class. It is the law’s neutrality as the very mechanism that perpetuates injustices against woman.Feminists embrace a view that attempts to challenge the existing legal status by focusing on what kind of institutions and laws would be necessary to redress the imbalance against woman in society. It is the very core of our society that the feminist jurist’s question.

They argue that we must look at the norms embedded in our legal system and rethink the law.Feminist Jurisprudence is a fight against traditional law which are mostly patriarchal in nature. One wonders what changes could have possibly occurred had the feminine view was taken in framing of laws.

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