Please remember that when you’re answering an exam question that requires you to compare and contrast different schools of feminist legal thought, then don’t start off directly with the types of schools and comparing them, it is recommended and super essential that you create an edifice for the background first. Things like: ‘What is feminism?’ and ‘What is patriarchy?’ and how patriarchy pervades most of the legal, social and political thought is something that needs an understanding and thus you can discuss that along with discussing what Lloyd and Freeman, Morrison and other academics do when they say that what unites legal feminists is the idea of patriarchy. There are certain common grounds between different schools of feminism and patriarchy is one of the most important one. For a detailed introduction to an understanding of patriarchy, please refer to the previous post: here. The following are the notes compiled from various sources to make things simpler and understandable.
Examination question: Compare and contrast ‘radical’ and ‘liberal feminist’ approaches to law and legal theory.
Before going on to analyze the fundamental differences between the Liberal and Radical Feminist school of thought, and before we compare and contrast those two, it is important to first explain what these schools are primarily about. So here we go:
WHAT IS LIBERAL FEMINISM?
“Who made men the exclusive judge, if women partake with him the gift of reason.”– Mary Wollstonecraft
Liberal feminists take the view on ‘Liberalism’ in the realm of feminism. Now Liberals generally support ideas such as free and fair elections, civil rights, freedom of the press, freedom of religion, free trade, and private property etc. The roots of Liberalism lie in The Age of Enlightenment (or simply the Enlightenment or Age of Reason) which was a cultural movement of intellectuals beginning in late 17th- and 18th-century Europe emphasizing reason and individualism rather than tradition. Thus it can be said that Liberalism is a political philosophy or worldview founded on ideas of liberty and equality. Liberal Feminism was most popular in the 1950’s and the 1960’s when many civil rights movements were taking place. The main view of liberal feminists are that all people are created equal and deserve equal rights.
Patricia A. Cain in ‘Feminism and the Limits of Equality’ described liberal feminist thought as:
1. Liberal Feminism: Liberal feminism is rooted in the belief that women as well as men are rights bearing, autonomous human beings. Rationality, individual choice, equal rights and equal opportunity are central concepts for liberal political theory. Early liberal feminists include Mary Wollstonecraft and Harriet Taylor. The contemporary ones include academics such as Betty Friedan. The principle aim of the liberal view of law is to uphold the rule of law: i.e. all people are equal before the law. The law is seen as neutral and impartial amongst persons. It is irrelevant what sex or gender you are (also what colour, ethnicity etc). Liberal feminism is viewed as the dominant theory behind Reed v Reed [Almost forty years ago today, for the first time in its history, the Supreme Court held that a law that discriminated against women violated the Constitution. In Reed v. Reed, a unanimous Court struck down an Idaho law requiring the automatic preference of a man over a woman when both applied to be the executor of an estate. The Court recognized that women had a constitutional right to equal protection of the law, turning from a long list of previous rulings that allowed women to be excluded from juries, or the legal profession, or even bartending, on the grounds that women needed to be protected from the rough-and-tumble of the workplace or the public square, or confined to the sphere of hearth and home]. Liberal feminists have been criticized by radical feminists for being concerned with only equal pay in the public sphere. The equality argument that women are workers just like men. The ‘sameness approach’ (i.e. treating men and women the same)- bringing women on the same threshold as men- but how could this approach help in areas where men either can’t or usually don’t relate: e.g. pregnancy, abortion, sexual violence?
Wayne Morison on Liberal feminism: The first wave of feminism argued for equality of treatment for both men and women. Under the banner of liberal feminism women won most of their legislative and judicial histories including the suffrage (right to vote), equal pay, benefits, access to employment and education, the right to serve on juries and the limited right to choose to terminate pregnancy.
Liberal feminism’s main goal has been the continual push for equality between men and women when it comes to individual rights. Liberal feminism surpasses the traditional concept of “feminism” by advocating the equality of all citizens. It just happens to advocate on the side of the women because out of the two sexes, women are far more oppressed than men in societies across the globe.
The Equality Argument:
One of the earliest liberal feminists includes Mary Wollstonecraft whose academic writing and work is considered as one of great credibility and significance as it is still relevant and pertinent today. Now highlighting the aforementioned quote by Mary Wollstonecraft, Liberal feminists believe that women have the same mental capacity as their male counterparts and should be given the same opportunities in the legal, political, economic and social spheres.
Women should have the right to choose, not to have their life chosen for them on the basis of their sex. They are as rational creatures, autonomous, rights bearing human beings as much as men are. To create the level of equality, liberals assert that woman are equal to men and that men are equal to women and thus essentially women must be like men.
A liberal feminist would not necessarily push for liberation on behalf of women specifically, but instead would push towards giving women an equal connotation as men in relation to status and individual rights. In essence, a liberal feminist does not want to propel women above men, as that would result in the same injustice (except in reverse) that they are fighting so adamantly against, but instead want men and women to be viewed with equal connotation of status.
Liberalism and Law:
Liberal feminists create and support acts of legislation that remove barriers for these women so that a level of equality can be established. These acts of legislation demand equal opportunities and rights for women, including equal access to jobs and equal pay. Liberal feminists believe that removing these barriers directly challenges the ideologies of patriarchy, as well as this liberates women.
Liberal feminists are responsible for many important acts of legislation that have greatly increased the status of women, including reforms in welfare, education and health. Unfortunately Liberal feminism has been known to only concentrate on the legislation aspect in the fight against patriarchy. It has been criticized for not breaking down the deeper ideologies of society and patriarchy. Also, it has been criticized for ignoring race and class issues.
Summary of Liberal Feminism:
- Rooted in the belief that women as well as men are: rights bearing and autonomous human beings
- Central concepts for liberal feminism are that all human beings, i.e. both females and males are: rational human beings, practicing their individual choice, are rights bearing individuals who possess equal rights and that both sexes should be given equal opportunity
- Early liberal feminists include Mary Wollstonecraft and Hariet Taylor
- The principal aim of the liberal view of law is to uphold the rule of law: i.e all people should be equal before the law
- Law is seen as neutral and impartial amongst persons
- Liberal feminism is the dominant theory behind the case: Reed v Reed (1971) – the first equal protection case decided favourably for women in the US Supreme Court- where the court saw that men and women are equally situated.
- Morrison claims that under the banner of liberal feminism, women won most of their legislative and judicial histories including the suffrage (right to vote), equal pay, benefits, access to employment and education, the right to serve on juries and the limited right to choose to terminate pregnancy.
WHAT IS RADICAL FEMINISM?
Radical feminism is a philosophy emphasizing the patriarchal roots of inequality between men and women, or, more specifically, social dominance of women by men. Radical feminism views patriarchy as dividing rights, privileges and power primarily by gender, and as a result oppressing women and privileging men.
Radical feminists tend to be more militant in their approach (radical as “getting to the root”). Radical feminism opposes existing political and social organization in general because it is inherently tied to patriarchy. Thus, radical feminists tend to be skeptical of political action within the current system, and instead support cultural change that undermines patriarchy and associated hierarchical structures.
Radical feminism opposes patriarchy, not men.
Radical feminism as the name entails, has a mere radical stance on inequality between men and women. A radical feminist would argue that the favouring of men over women in modern society can not be quickly fixed due to the long rooted mindset of male superiority that has plagued the human race since the beginning of time. With that said, and in contrast to liberal feminism, a radical feminist would argue that a widespread social revolution on behalf of women can be conquered through liberation of all women.
Equality Argument Is Not Sustainable
In order to accomplish this goal, a fundamental change in values will need to be set in motion. Women will need to be given equal respect and credit for their traditional role in the home as men are given for their role in the public realm as government officials and professionals of society. Put more simply, women should not need to change their traditional role to that of a man’s in order to achieve equality, but should instead be valued for the roles that they do traditionally hold.
Radical feminism promotes the basis for the many ideas of feminism, because radical feminists believe that society must be changed at its core and in order to dissolve patriarchy, and this cannot be achieved solely on the basis of acts of legislation.
Radical feminists believe that the domination of women is the oldest and worst kind of oppression in the world. Radical feminists want to free both men and women from the rigid gender roles that society has imposed upon them. For its is the sex-gender system that has created oppression and radical feminists mission is to overthrow this system by any possible means.
Patricia C. Cain on Radical Feminism:
2. Radical Feminism: Patricia says that Radical feminism is not easily defined because it takes many forms. For many purposes it will be sufficient to contrast radical feminist thought with liberal feminist thought. Radical feminists focus on women as a class, typically as a class that is dominated by another class known as men. Radical feminists in the legal academy include Catherine MacKinnon and Christine Littleton. Catherine MacKinnon argues that because men have defined women as different, equality arguments cannot succeed. In MacKinnon’s view, “an equality is a question of distribution of power”. The most important difference between men and women is the difference in power. Men dominate women. Men have been in control for so long that legal discourse completely ignores the reality of women’s lives. Using the tools of domination and sexual subordination instead of equality, radical feminists in the MacKinnon camp argue for changes in law that will end the inequality in power. Sex equality in this view affirmatively requires protecting women from such things as sexual harassment, rape and battering by men. An extension of this theory is used to justify a ban on pornography because pornography is thought to contribute towards women’s sexual subordination. Some liberal feminists question parts of radical feminist agenda on grounds that special protections for women often lead to inequality. The most serious disagreement between liberal and radical feminists is over pornography. Pornography in the view of the radicals is male created and it defines women as a sexual object.
Lloyd on Radical Feminism:
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 always 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.
Public and Private: Please note that the radicals emphasize on the need to consider the private sphere. 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.
‘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)
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 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.
Summary of Radical Feminism:
- Patricia A. Cain says that Radical Feminism is not easily defined because it takes many forms.
- Radical feminists focus upon women as a class, typically as a class that is dominated by men
- Radical Feminists in the legal academy include Catherine MacKinnon and Christine Littleton
- Catherine MacKinnon argues that because men have defined women as different, equality arguments cannot succeed. In MacKinnon’s view, “equality is a question of distribution of power”. For them, the most important difference between men and women is the difference in power
- Men dominate women. Men have been in control for so long that the legal discourse completely ignores the reality of women’s lives
- Using the tools of domination and sexual subordination instead of equality, radical feminists in the MacKinnon’s camp argue for change in law that will end the inequality in power
Radical Feminism vs. Liberal Feminism
There are certain fundamental differences between Radical and Liberal Feminists and amongst them some of the major ones are these:
- Radical feminists grow restive when liberals talk about rights.
- Liberals case rests on rights, and the failure by society to accord women the rights to which they are entitled
- Radicals say that the liberals demand in seeking rights and opportunities fail to address more fundamental issues about what ought to be protected. In the pursuit of securing rights too often channels the promotion of individual aspirations. And thus , this individualistic framework ill serves the values of cooperation and empathy that feminists find lacking in our current legal culture.
- Radical feminists also argue that the rights that liberals seek are too often ones that do no more than protect predominately white, middle class interests
- Liberalism accepts without criticism the reasoning process of the law with the rationality that has developed the society already
- Radical feminists reject this approach since they believe that the reasoning structure of law is congruent with the experiences of men especially white males
- Radicals say that law strives for rules that are universal, objective and neutral. There is a connection between power and knowledge. The language of neutrality has silenced, excluded and marginalized law to comprehend women’s definitions
- Finely says, :”Thus within the language and reasoning system, alternative voices to the one labelled objective are that of the women’s and are suspected as biased
- By liberalism, objectivity is respected. Liberalism looks at things from the outside and from what it observes, draws conclusions
- Radical feminism embraces subjectivity, it acknowledges without apology that it is involved and interested: that it looks at matters from the inside; that it makes no attempt to ‘separate the observer and the observed’
3. PUBLIC AND PRIVATE SPHERE:
- Radicals say that the equality argument posed by the liberals is male determined. Also that the liberals discuss the importance of emancipating women in the public sphere, whereas the law should interfere in the private sphere as well as most exploitation occurs in the private sphere because exploitation takes many forms – it varies as economic, political, legal exploitation, but the worst form of exploitation is gender exploitation which is also a power struggle and thus most power lies with men. Thus if the liberals focus on the public dimension then how can they not be cognizant of the fact that most women and girls suffer in the private sphere and this area should not be left unregulated.
- Liberal feminists have tended to concentrate on public issues such as discrimination against women over pregnancy whether pregnancy should be a reason for dismissal, whether time off should be given for pregnancy, and the effects of the possibility of pregnancy on job applications and job prospects
- Radical feminists while not discounting the importance of public issues, have looked more towards issues that effect women’s private lives such as protection against harassment, as in the form of being whistled at in the street, degradation and exploitation and pornography, battery and rape within marriage [Patricia A. Cain: Feminism and the Limits of Equality(1990)]
- Radicals have paid particular attention to the effect of patriarchy on women’s private lives. It needs to be shown how patriarchy fails to recognize the economic value of the contribution of women constituted by child rearing and housework. It needs to show that abortion is not infanticide but an act by a woman of self defence against the invasion by the other – i.e. the foetus case Roe v Wade
- Liberal feminists believe that sexual exploitation should be deplored and outlawed but that voluntary pornography should not be restricted as it suppress individual rights, freedom and choice
- Radical feminists believe that pornography should be outlawed or at least restricted and rigidly confronted as some situations exist which demand and seek voluntary pornography might be situations which are camouflaged as human trafficking etc in the garb of pornography
- They also believe that women need to be protected from this false consciousness that they live with. Thus for radicals, pornography is so-called voluntary and is not really a woman’s choice. Women are under a false consciousness and thus they need to be protected from the influence of patriarchy which also dominates all spheres of their lives
- Catherine Mackinnon is best known for her writing on pornography. In “Feminism Unmodified“, she highlights the exploitation of women through pornography. According to her, researchers who found that men who consumed pornography – even the ‘non-violent’ variety care to see women as more worthless and object like and thus they become more tolerant of rape and violence directed against them. Moreover, pornography invades its victim’s ‘civil rights’ defining it as the “graphically sexually explicit subjugation of women”
Taking this debate further, liberal feminists have tended to pay attention to the similarities between men and women, arguing “We are in all essential, the same as you, we have no less an intelligence, no fewer talents, no fewer capabilities, so why should we be treated differently, as inferiors? For instance, why should women who drive buses get lower wages than men?
Radical feminists point to the weakness of this line of attack- it only holds good in cases where women are the same as men, for example as regards physical strength. But men and women are not similarly situated. In particular, women may become pregnant. Why should this difference put them at a disadvantage?
Radical feminists focus attention on the differences between men and women and argue that ‘we recognize the differences between men and women exist, but what justification is there for any such differences being treated as a reason for women to be disadvantaged?
Stay tuned for a post on Cultural Feminism. As there is a separate question on that topic.