Feminist Legal Theory

This is going to be a summarized and condensed version of extracts and some analysis on feminist legal theory based on the guide, some articles, and other readings including Morrison, Lloyd etc. There’s always a lot more reading to do. However these notes can be used as a guide. If anything is unclear please leave a comment and I’ll get back to you.

What is Feminism?

In a very broad sense feminist philosophy of law is one put forward by women identifying the pervasive and all encompassing influence of patriarchy on all spheres of life be it public or private, legal, political, social, cultural etc. It demonstrates the effects of patriarchy on the material condition of women and girls and develops reforms to correct gender injustice, exploitation or restriction etc.

The image below represents the image of society as seen by the feminists: one in which patriarchy dominates almost all aspects of society thereby creating subordination of women through the domination of men and creating other problems for them such as oppression. Feminist Jurisprudence resolves to cripple the effect of patriarchy on society so that there could be way for women emancipation. What feminism does is that it aims at redefining the role between the individual and society.

PATRIARCHY: - dictionary meaning > A system of society or government in which the father or eldest male is the head of the family and descent is traced through the male line. > It i s a system of society or government in which men hold the power and women are largely excluded from it.

PATRIARCHY:
– dictionary meaning
> A system of society or government in which the father or eldest male is the head of the family and descent is traced through the male line.
> It i s a system of society or government in which men hold the power and women are largely excluded from it.

Patriarchy is the term used to describe the society in which we live today, characterized by current and historic unequal power relations between women and men whereby women are systematically disadvantaged and oppressed. This takes place across almost every sphere of life but is particularly noticeable in women’s under-representation in key state institutions, in decision-making positions and in employment and industry. Male violence against women is also a key feature of patriarchy.

Bell Hooks, an American author, social activist and feminist has the following to say about patriarchy:

Patriarchy is a political-social system that insists that males are inherently dominating, superior to everything and everyone deemed weak, especially females, and endowed with the right to dominate and rule over the weak and to maintain that dominance through various forms of psychological terrorism and violence. When
my older brother and I were born with a year separating us in age, patriarchy determined how we would each be regarded by our parents. Both our parents believed in patriarchy; they had been taught patriarchal thinking through religion.

[Note: Patriarchy is an important term here and no answer on feminism would be complete without it]

Deconstruction and Reconstruction

In the diagram above we noticed that the solution to the problem of patriarchy is to ‘redefine roles between the individual and society’. This process is called ‘deconstruction’ and thus here we can draw a comparison with feminism and critical legal studies since feminists are aiming at deconstructing whatever helps in creating patriarchal structures and in its place it reconstructs the edifice for new beginnings starting from a female perspective. Within the framework of deconstruction and reconstruction,feminist jurisprudence seeks to:

  • demolish the nature of ‘universal’ concepts or definitions in both in political and legal theory.
  • by demonstrating their patriarchal character
  • asserting thereby that important concepts such as power, freedom, authority, privacy, democracy and citizenship are to rethought

What does feminism highlight?

These will be referred to as tactics as feminist writing revolves around these:

Tactic 1: Highlighting women’s injuries and actual harm This is about:

  • preventing rape and other injuries
  • treatment of rape victims

Rape is viewed as something that maintains women in a subjugated position and which has largely been overlooked by the legal system.

Example 1: Mukhtara Mai – Pakistan (Case of rape) “Mukhtar Mai is a woman from a village in the Muzaffagarh district of Pakistan. In 2002, she was gang-raped on the orders of a tribal council as part of a so-called “honour” revenge. While tradition dictates that a woman should commit suicide after such an act, Mukhtar defied convention and fought the case. Her rapists were never convicted, but the story was picked up by domestic and international media, and she has become an iconic advocate of women’s rights, despite constant threats to her life. She has opened a girls’ school and women’s crisis centre in Muzaffagarh.” (Source: NewStatesman)

Example 2: The example of Reyhaneh Jabbari – Iran (Personal injury and rape) “Jabbari (26) was arrested in 2007 for the murder of Morteza Abdolali Sarbandi, a former intelligence ministry worker. And was hanged in Oct 2014. The UN urged Iran to put a moratorium on all executions. A campaign calling for a halt to the execution was launched on Facebook and Twitter a month before her execution and appeared to have brought a temporary stay in execution.Amnesty International said she was convicted after a deeply flawed investigation. (Source: BBC)

Example 3: The case of Asia Bibi – Pakistan (seen as a case of actual harm that involves religion; in your exam connect it with how law becomes a tool to perpetuate oppression and how religion acts as a catalyst) “Asia Bibi, a Christian woman, is at the gallows.The charge against her is blasphemy though all that had happened was that in a quarrel with other farm workers over use of the same cup for drinking water, there was an exchange of words between her and the other women in June 2009. How deep the hate mongering runs in Pakistan against minorities in particular and women in general is evident from this incident.” (Source: New Indian Express)

Other examples that can be used include Boko Haraams kidnapping school girls and selling them off as sex slaves. ISIS enslaving women. Malala being shot by the Taliban and her aim of sending all girls to school etc.

Now it behooves us to ask ourselves why is it important to highlight the injuries of women?

The answer to this is that this is important for consciousness raising i.e women need to be aware and awake to their surroundings. This is elucidated further by Rochelle Robinson, a feminist and an activist who writes:

Let’s appreciate the voice and courage of Latoya Henderson (a black woman who was raped and she raised her voice against her perpetrator) and the countless others before and after her who dared to come forward, to speak unspeakable truths, break silences, put shame to rest and in so doing, challenge multiple oppressions caused by patriarchy, trans/homophobia, racism, sexism, even at the risk of emotional and physical injury. For it is the telling that raises awareness and consciousness, helps another victim-survivor to feel safe, and can create a path to affect change.  It propels us from the margins and places us in the center of our stories and experiences (where we belong), and forces society to look in the mirror and see how ugly it’s become.  It reminds us that, regardless of society’s atrocities, we can be bold and beautiful and whole.

About this West says: “Just as women’s work is not recognized or compensated by market culture, women’s injuries are often not recognized or compensated as injuries by the legal culture… women’s gender specific suffering comes in various forms, but the outcome is always the same: women’s suffering for one reason or another is outside the scope of legal redress…”

In this capacity how does the law create barriers for women and act as a tool of oppression?

“There is no other crime I can think of where the victim is more victimized,” said Rebecca Campbell, a professor of psychology at Michigan State University who for 20 years has been studying what happens legally and medically to women who are raped. “The victim is always on trial. Rape is treated very differently than other felonies.” So, too, are the victims of lesser sexual assaults.

In 1991, when Anita Hill, a lawyer and academic, told Congress that the Supreme Court nominee Clarence Thomas had sexually harassed her repeatedly when she worked for him, Ms. Hill was vilified as a character assassin and liar acting on behalf of abortion-rights advocates.

But even when there is DNA evidence of a completed sexual act, as there was in the Strauss-Kahn case, the accused commonly claim that the sex was consensual, not a crime.

Victims may be reluctant to report a rape because they are embarrassed, fear reprisals and public disclosure, or think they won’t be believed. “Victims often think they somehow brought it on themselves,” said Callie Rennison, a criminologist at the University of Colorado in Denver. “Rape is the only crime in which victims have to explain that they didn’t want to be victimized.” (Source: NYTimes).

In Susan Estrich’s discussion of rape (Estrich, 1987, 1987a), she claims that the mens rea criterion can be used to create either too much emphasis on the perpetrator’s intention, or too little. In either case, she believes the focus on this criterion makes evident the law’s lack of understanding of and concern for the harms women suffer. The law’s focus is to not wrongly punish men, which is achieved at the cost of not protecting women.

Further, Estrich argues that the force criterion is understood from a patriarchal perspective: force is seen as a matter of what “boys do in schoolyards.” This criterion figures force as a simple matter of the straightforward use of physical strength, or the use of implements of violence. But it ignores the kinds of force that are most frequently used in rape and other types of harm to women, such as psychological coercion. If the courts expect women to resist physical and psychological coercion in the same ways and at the same level that men do, then the courts impose an unreasonable expectation on the “reasonable” woman.

Tactic 2: A critique of the epistemology of jurisprudence

  • assertions in this area have been carried out from the masculine school of thought i.e. everything is seen from the males perspective
  • some feminist scholars claim that such prevailing positions are not actually ‘objective’ but only limited and biased
  • Bottomley asserts: “… we are now asking if not only the practice of law silences women’s aspirations and needs, and conversely privileges those of men…. the construction of our understanding and knowledge of law is the product of patriarchal   relations at the root of our society.”
  • all forms of dualism (the division of something conceptually into two opposed or contrasted aspects, or the state of being so divided) are questioned by feminism, since women have generally been regarded ‘other’ within sets of dualistically defined relationships.

They’re asking the government to become stakeholders in the interests of women. Discrimination against women persists in both public and private spheres in times of conflict and in peace. It transcends national, cultural and religious boundaries and is often fuelled by patriarchal stereotyping and power imbalances which are mirrored in laws, policies and practice.

Have any steps been taken?

An illustration is: The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), also known as the Treaty for Women’s Equality, is a landmark international agreement that affirms principles of fundamental human rights and equality for women around the world. CEDAW is a practical blueprint for each country to achieve progress for women and girls.The CEDAW Treaty contains 30 articles that provide a practical blueprint to promote basic human rights, achieve progress and overcome barriers of discrimination against women and girls, while recognizing that it is up to each county to determine how best to bring their policies and laws in line with ending discrimination against women.

Tactic 3: Asking the women question

  • The ideals of Western rationality- Rule of Law etc distort and leave partial our understanding of the nature of social relationships
  • The issues that have dominated the task of governing and deciding upon new legislation have been issues that most concerned men, the potentiality for an alternative woman’s perspective has been systematically ignored.
  • Gilligan”….. the claim that maleness is the organizing form of what is accepted as the ‘normal’ and that most forms of equality legislation are not vehicles for a true equality between men and women but rely upon making women as ‘men'”

Tactic 4: Listening to the ‘voices’ which have been excluded from the meta narratives of modernity

  • The silence on women ‘projects the female at the place of patriarchy’s ‘Other’ ( view or treat a person or group of people as intrinsically different from and alien to oneself)
  • Patricia J. Williams uses reflections on personal experiences as  the focus for exposing general themes
  • There exists a diversity among females and the minorities are least represented

Tactic 5: A critique of essentialist functional categories

  • In philosophy, essentialism is the view that, for any specific kind of entity, there is a set of characteristics or properties all of which any entity of that kind must possess. Therefore all things can be precisely defined or described.
  • There exists a multiplicity of subject positions, not just the unitary notions of woman or female gender identity.
  • “In today’s world, women from all walks of life occupy powerful positions in the corporate world, the media, government, and politics. It is nearly impossible for one to come up with a framework for solidarity among women who are so vastly different.”

 

Feminists believe that the voice of women is not being refracted in society for the simple reason that patriarchy dominates their lives.

Feminists believe that the voice of women is not being refracted in society for the simple reason that patriarchy dominates their lives. For instance Jane E. Brody writes in the NYTimes- “Nearly every woman I know can recall one or more instances in which she was sexually assaulted, harassed, threatened, inappropriately touched or even raped. Yet few told anyone about it at the time, or reported it to the police.”

Morrison on Feminist Jurisprudence

Please introduce me to a world where I don’t have to miss myself – Leslie Reese, a black feminist

Feminism is the greatest and most decisive social revolution of modernity. Unlike a political revolution, a social revolution does not break out: it takes place. A social revolution is always a cultural revolution as well. The feminist revolution is not just a novel phenomenon of Western culture, it extend to a variety of existing cultures. Feminism is a form of praxis (practice in oppose to theory) and includes elements like: demands for emancipation, equality and liberation of women, later ideas stress the need for a social transformation of law, culture and social patterns which release women’s potential. The purpose of feminism is to liberate women. Make them stand on an equal footing with men and help them pursue styles of life that give them freedom to express and feel. Professor Morrison says that feminism addresses many problems but there are three self evident ones:

  1. Domination: Concrete reality of oppression repeatedly legitimated by legal regulations. It is undeniable that the legal position of women throughout history has been recurrently little better than that of slaves, the legal property of their masters (eithers fathers or husbands) who protect and control. Analyzing, highlighting and politically fighting the structures of oppression and violence. Oppression and exploitation can take many forms, but the economic statistics are startling. According to a UN report of 1980 ‘Women constitute one-half of the world’s population, perform nearly two-thirds of its work hours, receive one-tenth of the world’s income and own less than one-hundredth of the world’s property.’ | Feminist scholars point out that violence is both open and latent. The ever-present background possibility of violence is the main mechanism by which unequal power relations are sustained.
  2. Patriarchy: The second is the issue of patriarchy, or the system of male authority which structures the institutions and organizational rationality which constitute the oppressive and exploitative relations which affect women. Analyzing the pervasiveness of patriarchy and engaging in strategies to combat this. These range from consciousness raising to arguing that the ‘personal is the political’ and that there are no spaces beyond the reach of patriarchal oppression. The term ‘personal is political’ was created to underscore what was happening in women’s personal lives–i.e. access to health care, being responsible for all of the housework, possibly being sexually assaulted in our own homes–was a political issue. This was meant to 1.) inspire women to be politically active in the issues that affected their lives and 2.) make sure that politicians paid attention to women’s lives–and look at how the laws ignored women.
  3. Women’s Sense of Justice: 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. Analyzing the question of justice.Traditionally women have been portrayed to have an underdeveloped sense of justice. Even before classical Greece, mythology proved tales and images of women as irrational, unpredictable, emotional and earthy, as opposed to the qualities of balance, reason and distance which men seemingly brought to deliberations. Civilizations is seen as the work of men, while women are essential to sustain it both through reproduction, child care and softening and mending the rough edges of male creativity.

How does feminist jurisprudence seek to address these issues?

(Please note: These are similar to the tactics discussed above)

  • Feminist scholars highlight areas where the law either legitimates oppression or the discrimination of females perhaps by enforcing a separation in areas of life activities, or not taking the violence done to women seriously. (Remember Saving Face?)
  • Providing a critiques of epistemology of traditional jurisprudence and attempts are made to change the way areas of law are traditionally viewed.
  • Undercutting the structure of abstract masculinity which is depicted as the organizing force of a great deal of social, moral and political thought. The desire is to restructure the masculine response which is tied up with statements claiming that it is objective, logical, extroverted, realistic, mechanical and pragmatic.
  • Writers bring women’s experiences directly into both theorizing and the practice of understanding the law in reality
  • Feminist scholarship tries to understand the dichotomies imposed by theory on the analysis of life and to reject as artificial those that claim a naturalness or universality which are based on masculine preconceptions
  • Feminist scholars resist accepted or commonplace perceptions of the normality of standards since these may be created under patriarchy- false to the ‘reality’ which we should aspire to
  • Feminist scholarship often makes problematic any simple reliance on law to resolve social disputes. For feminist jurisprudence the law (and the state) is male in its structure of rationality, decision making and forms of resolution; thus law cannot be the answer to the problem of creating ‘just’ social relation (in the notions of the rule of law, equality, rights, justice). This raises the issue of going beyond law (thus the solution to rape is not anything the law can provide but an issue of structural inequalities)
  • Feminist strategies seek to illuminate and define the wrongs done to women neglected by traditional perspectives. This can be done through letting in the range of voices , experiences of women and others (particularly ethnic minority women to redefine the wrongs suffered by women

Lloyd on Feminism

Lloyd says that feminism focuses on:

  • the analysis of law’s relationship to oppression. In particular to patriarchy.
  • Feminist jurisprudence like the critical legal studies aims at the “basic” critique of the inherent logic of the law, the indeterminacy and manipulation of doctrine, the role of law in legitimating particular social relations, the illegitimate hierarchies created by law and legal institutions.
  • That it is also necessarily a development from the women’s movement more generally. This emerged with the writing of Simone de Beauvoir, Kate Millet etc. To a large number of women studying law also had its impact as female studies began to question a curriculum which neglected issues of central concern to women: rape, domestic violence, reproduction, unequal pay, sex discrimination, sexual harassment.
  • Feminist jurisprudence is a house with many rooms: in this it reflects the different movements in feminist thought. But what unites feminist legal theorists is a belief that society, and necessarily legal order is patriarchal. It looks at ways in which this patriarchy can be undermined and ultimately eliminated. Therefore it delves on women’s subordination; exploring its nature and extent.
  • It seeks to analyze 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.

Clare Dalton has written of feminism that it is a “range of committed inquiry and activity dedicated first, to describing women’s subordination – exploring its nature and extent; dedicated second to asking both how- through what mechanisms, and why- for what complex and interwoven reasons – women continue to occupy that  position ; and dedicated third to change.”

To engage in feminist legal thought is to use feminism to concentrate this inquiry and activity on the legal system. The inquiry is feminist in that it is grounded in women’s concrete experiences: the personal is the political.

What is Feminism about?

Equality and Difference: The early push for feminists was equality with men. But increasingly questions began to be asked: do women want to be treated like men? does equality require different treatment? are there more important values than equality? MacKinnon and Littleton are critical of the traditional approach to equality. This traditional approach is perhaps best represented in a classic article by a liberal feminist, Wendy Williams. Williams had argued that feminists have only two choices: either equality on the basis of similarities between the 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 treating women worse as well as better than men. But an equal treatment approach only benefits women who meet male norms and not those who engage in female activities, childbearing and rearing most notably.

Catherine MacKinnon is probably the most influential of feminist legal scholars. In the extract from ‘Feminism Unmodified’ she argues that feminists should concentrate on identifying dominance. This treats gender equality issues as questions about the distribution of power, about male supremacy and female subordination. It is dominance not difference that is central to MacKinnon. This conceptualization enables Mackinnon 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 viewpoint 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. And therefore for changes in the law that will end power inequalities, in such areas as sexual harassment, violence and pornography. MacKinnon’s article is a clarion call for equal power for women. But are all women alwasy subordinate to men or always dominated by men in the same way? Is this also the experience of lesbians? Does MacKinnon’s view refuse to acknowledge the positive aspects of difference, for example those such as caring that is associated with motherhood? Is MacKinnon’s answer to this satisfactory that “women value care because men have valued [women] according to the care [they] give them?” (Feminism Unmodified)

MacKinnon has been criticized for perpetuating a stereotype of women as victims and for embracing a deterministic vision of male-female relations (Finley). Nor does she offer much by way of a blueprint as to how power should be used by women once they have acquired it, (K. Bartlett) though her own work on anti-pornography ordinances may offer a hint.

Women & Ideology: The argument that women suffer from “false consciousness”, or that their choices are unconsciously determined by gender ideology, has tormented feminist theory.

Public and Private: It has been said that the dichotomy (a division or contrast between two things that are or are represented as being opposed or entirely different) between the public and private is ultimately what the feminist movement is about.

Domestic relations are left undealt with. For instance distancing the private sphere from the public sphere by talking of the family as “private”, one is referring both to its being (supposed) outside the authority of the state , and outside the scope of market relations. Neither is true. Since power is deemed to be situated in the public arena, power relations in the domestic sphere can be ignored. It is as if they do not exist.

Power differentials which are so central in domestic relations are overlooked. The political nature of the family, as a place where we learn (or learn in part) our gendered selves, is ignored.

[Q. Why is there so much emphasis on gender?

A. Sex = male and female: with respects to biological differences

Gender = masculine and feminine: the characteristics that a society or culture delineates as masculine or feminine

So while your sex as male or female is a biological fact that is the same in any culture, what that sex means in terms of your gender role as a ‘man’ or a ‘woman’ in society can be quite different cross culturally. These ‘gender roles’ have an impact on the definition of roles of an individual in society.

In sociological terms ‘gender role’ refers to the characteristics and behaviors that different cultures attribute to the sexes. What it means to be a ‘real man’ in any culture requires male sex plus what our various cultures define as masculine characteristics and behaviours, likewise a ‘real woman’ needs female sex and feminine characteristics. To summarise:

‘man’ = male sex+ masculine social role

(a ‘real man’, ‘masculine’ or ‘manly’)

‘woman’ = female sex + feminine social role

(a ‘real woman’, ‘feminine’ or ‘womanly’)]

Women are depoliticized (removed from political activity or influence) and their lives are marginalized-only in the last 25 years (M.A. Fineman and R. Myskitiak, The Public Nature of Private Violence 1994) has domestic violence assumed any political importance or abortion entered the political consciousness ( S. Sheldon, Beyond Control- Medical Power and Abortion Law 1997). The emphasis instead is on “public” wrongs and women’s injuries are often not recognized or compensated as injuries by the “public” legal culture (R. West 1987)

The private sphere is, of course, permeated by government. And as Anita Allen points out, “To the extent that the government is infused with patriarchal, heterosexual, ideas, men and women’s privacy rights are likely to reflect patriarchal, heterosexual ideas of a private sphere.”

Cultural Pluralism & Women’s rights: One problem that feminism has had to confront is addressed in the extract from Susan Moller that the right of minority cultures “to live according to their own value systems” when these cultures appear to Western feminists to be detrimental to women. How should a Western legal system respond? For eg. To polygamy or female genital mutilation? If it allows these practices it may legitimate gender inequalities. Much cultural behavior takes place in the private sphere.

Coleman cites disturbing examples to demonstrate the consequences of allowing cultural practices exemption from liberal rights and freedoms: the use of the so-called “cultural defence” can lead to women being denied protection that would be taken for granted by women within the dominant culture. According to Coleman- the cultural defense affords substance equally between individuals by “invidualizing justice”. For Coleman, cultural defenses are “eerily reminiscent of the history of gender and radical apartheid”. To Volpp, Coleman’s thesis is premised on a view that the cultures of Asia and Africa “lag behind” the West. Just as “maleness” has long been the norm, so it may be argued, Western culture is now the standard by which to judge morally.

Feminist Legal Methods: Finley’s essay is an examination of the relationship between language, power and the law. She argues that legal language and reasoning is gendered: it is informed by men’s experiences and derived from the powerful social position of men, relative to women. She emphasizes, much as Olsen does, the dualistic & polarized nature of this thinking, and stresses that the claim that law is patriarchal does not mean that women have been ignored by law, but the law’s cognition of women is refracted through the male eye rather than through women’s experiences and definitions. Having argued that many of the projects and themes of traditional jurisprudence and moral and political theory essentially derive from the masculine experience of life; feminist writers offer counter-descriptions of life.

Exam question:

‘Feminism reminds legal theory that there is no neutral standpoint, and that no objective knowledge. Claims to truth or authority always are underpinned by power; and power is inevitably that of men over women.’ Discuss.

Stay tuned for the schools of feminist jurisprudence which will be discussed in the next post!

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About MaryamAkram

Maryam Akram is a law graduate of University of London and an adjunct faculty member of Pakistan College of Law teaching the subject of Jurisprudence and Legal Theory. Apart from her academic responsibilities, she aspires to be a professional street photographer. An easy going person who loves to laugh and make other people smile as well. She loves eating ice cream. Her philosophy of life can be summed up in three words "Eat (preferably ice cream), pray, love."

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