The status of women as empowered citizens around the world is yet to be ascertained. Guided by the Charter of the United Nations and the Universal Declaration of Human Rights, it seems as if the trend towards a just social order reflects a better tomorrow, and yet, thousands of women suffer from the brutal crimes and atrocities committed by their male counterparts. Deeply woven into the social fabric of society, women face the onslaught of a patriarchal legal system – be it by the denial of fundamental rights in Afghanistan or the exclusion from property interests in India. Women still struggle as the marginalised gender in many parts of the world. This leaves considerable room for scrutiny of whether gender neutrality of the law is a reality, or indeed, a myth.
The aim of this paper is to map the main theoretical arguments of feminist jurisprudence, which help to unmask the hidden language of gendered laws. It draws upon the various feminist theories that have helped critique the basic assumptions of the Rule of Law, thus laying the foundation to understand whether laws are undeniably neutral. With this backdrop, the essay proceeds to critically examine the role of law in modern society and its ability to remain impartial. However, recognising the permeable nature of the legal structures, it concludes with seeking to portray the everyday influence of social rituals and customs that help determine the true character of the law. Thus, the law inherently possesses the capacity to construct or deconstruct, include or exclude, remain neutral or gendered in nature.
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Historically tracing the patriarchal tradition from the writings of Plato and Aristotle, it has been gathered that traditionally, culturally and socially, women have belonged to the second or the inferior sex. As this forms the point of departure of feminist jurisprudence, feminist scholars have brought to the forefront a wide array of issues on law and gender. The feminist movement has emerged as a defining force that worked towards highlighting and correcting inequalities and prejudices supported by seemingly neutral laws, through policy development. It marked the birth of a new political group who focussed on exposing the reality of gender neutral laws, campaigned for equality in the private and public sphere, stressed on women’s representation in political arenas and demanded a growth of feminist literature. Thus feminism heralded a significant critique of the legal landscape that governed the construction of socio-political equality in society, predominantly stressing on ‘law’s role in perpetuating patriarchal hegemony’ .
The development of law as an instrument of justice has long been the directive principle of ‘modern’ society. It seeks to protect and promote security, liberty and property of each individual , along with the promise to right the wrongs committed, and it assures a remedy for injustice. This representation of the law has given its political expression in the concept of the ‘Rule of Law’ – that is, the legal doctrine that all human beings are equal under the law and can expect from it a neutral and unbiased determination of their rights . Associated with liberalism, it rests upon the philosophy of rationality, objectivity, formal equality and impartiality. It creates an impression that all citizens have an equal right and value in society. It is this principle that critical legal theorists and feminists have challenged and disagreed with, subscribing to the claim that laws are masked in terms of neutrality, while in reality form the reason of discrimination.
Over the last 20 years, there has been a rapid growth of feminist jurisprudence in particularly Western ‘liberal’ societies. As a political theory, concerned with the issues of power, it challenges the status quo by assessing the manner in which power is controlled and distributed predominantly between the men in society. Despite the different approaches adopted by feminists, each school of thought converges at a unifying desire to abolish the omnipresent patriarchy in society. As feminists have developed various theories that refute the ostensible grand philosophy of Rule of Law, the Liberal and Radical feminist approach are the two most influential perspectives on women and law, generated by contemporary feminists.
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Ngaire Naffine has written about the first phase of feminism, and it can be characterised by its concern with male monopoly of the law. Stemming from liberal thought during the late nineteenth and twentieth centuries, this wave was supported by values of rationality, individuality, liberty and equality constrained under the rule of law. It separated the public from the private sphere. This dichotomy, the former regulated by the State, consists of the world of politics, employment and commerce while the latter is concerned with privacy – the family, and is unrestrained by the law and the State. It is this historical inequality of women vis-à-vis men that forms the point of embarkation for liberal feminists.
The first wave liberal feminists theorised that it was ‘bad’ law and policy that denied women an equal position in the public sphere. While emphasising the basis of the ‘sameness’ or the formal equality approach, they fought for suffrage rights while the second-wave liberal feminists focused their efforts on making all laws gender neutral and used the law to create equal opportunities for women to participate in the public world of men. However, as this approach sought to deconstruct the inequalities of the system, it did not challenge the traditional nature of the law. It denied that there were any important, immutable differences between men and women. As Catherine Mackinnon explains: ‘Liberal legalism is thus a medium for making male dominance both invisible and legitimate by adopting the male point of view in law at the same time as it enforces that view on society’ .
The second wave of feminism that dominated the late 70’s and 80’s addressed not so much the substantive inequalities under which women existed but rather the legal and societal structures that were responsible for the division. Also known as the Radical or the ‘difference’ approach, feminists analysed the innate male bearing power that was intricately woven into the system and seconded the legitimate use of laws and policies which specifically apply to women because of their biological or socially constructed differences. By assuming a gender-neutral language, radical feminists argued that the law masks the extent to which law is permeated by male constructs and standards. They also assumed that the private/ public distinction had been designed by men to serve their own interests of domination and attributed female subordination not merely to the historical ‘bad’ law but as a product of male intention . Therefore from a gender based equation of unequal power, it translated into a sex related distinction.
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Although, the Liberal and Radical feminist approach made substantial impact, altering the contours of women’s equality within and outside the law, it has nevertheless attracted criticism on various grounds. As Katherine O’Donovan’s work suggests that the private sphere was more regulated than liberal theory had implied. It used male experiences and male perspectives as the benchmark without questioning that standard, while the radical approach was criticised for its overemphasis on essentialism.
The Marxist approach is a classical critique of Western political thought. It postulated that the capitalist society was divided into ‘two great classes: Bourgeoisie and Proletariat’ , where the interests of the working class (Proletariat) was controlled by economically powerful ruling class (Bourgeoisie).
As the law forms a part of the superstructure that reflects the economic base in society, Engels argued that the position of women in society had been determined by the changing structure of marriage which itself is determined by economic forces. Thus, the feminist critique of Marxism posited, since the economic base was governed by men, it confined women to the ‘domestic sphere’ and hence, excluded her from participating in the legal domain, which subsequently governed the public sphere.
Arising in the late eighties and continuing through the nineties, the third phase of feminism or the ‘postmodern’ approach, as scholars defined it, accepted the premise of the law’s maleness but rejected the ‘grand theories’ of rights, equality and rationality. It understood gender as a socially constructed identity that forms the subject matter of law. It prioritised gender over sex, avoiding the perpetuation of women’s inequality through forms of biological essentialism and stressed on developing alternative perspectives for justifying the inbuilt prejudices.
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Thus, by throwing light on the various theories of feminist jurisprudence, one can begin to identify the overarching male domination that affects the construction of legality in an apparently gender equal society. As political ideas are not merely a passive expression of vested interests, but in reality engage in the process of influencing the legislature, it is only fair to embrace the interests of each individual in society, independent of their identity.
The logical divorce between the factual and the normative premise, underlines the positivist effort to provide a coherent structure of legal rules, unaffected by morality. From a feminist perspective, to account for the autonomy and impartiality of the law, is to reason from untrue assumptions. As manifested in the laws relating to provocation and rape, it has been illustrated by Susan Estrich that it is very difficult for the victim, most often a woman to prove her innocence and be awarded justice. The law is designed in a method that brings to focus unnecessary requirements such as her previous sexual history and a searing cross examination demeaning her personally in the eyes of the public. Though most jurisdictions have revamped their rape laws, this is a clear expression of yet another form gender bias within the scope of the law.
Moving from the theories that mirror the existence of a gendered environment of the law, it is important to study the language that manifests its expression. For centuries, men have written history. Central to any discourse or subject is the language that it adopts; but there is adequate evidence to portray that the traditional use of language has been biased towards men. According to feminist lawyers, the law has been cast in a mould that suitably belongs to the men. It replicates the understanding of the patriarchal form of reasoning as its yardstick, clearly indicating the exclusion of women’s voices in the drafting of statues and its interpretation. As Lucinda Finley points out, the universal legal language is a male language because intellectually, economically and politically privileged men have had power to set the standards of the law.
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As seen in the context of Labour Laws, Tort Law or Law of Contract, there is an inherent overtone of male perspective visible in the law that has been drafted. Along with the description of human nature, gender potential and social arrangements, the logic and structure of law reinforce men’s values. The language that is supposedly based on the premise of impartiality and rationality mirrors itself as contradiction to the fundamental objective stipulated by the doctrine of the Rule of Law. Thus the language of neutrality can easily silence the voices that have not participated in its creation, leaving it as a de-contexualised collection of rules and regulations.
Notwithstanding the above arguments towards the partiality of the law, it can be said that laws are changing to accommodate daily experiences where women play significant roles. To bridge the gap between theory and practice, legislations such as Equal Pay Act 1970, the Sex Discrimination Act 1975 has been designed to provide for positive equality. The efforts of international agencies such as CEDAW, UNIFEM, WHO, UNHCR, and UNESCO have been guided by the axiom of the Rule of Law and created appropriate monitoring instruments to safeguard women’s rights. As these organizations have worked towards setting international standards that ensures the protection of individual rights of women economically, politically and socially, it is apparent that efforts are being made to integrate gender as a central component in modern legal structures.
Bringing together the local and national laws to the echelon of international standard has hitherto been a core challenge. As the laws do not exist in a vacuum, it is critically important to analyse and locate the role of social customs that help determine the nature of formal laws – founded on the tenets of objectivity and rationality. In societies where laws are unreachable or unknown to women, as she is a victim of her surrounding, it is arguable that the ‘impartial’ nature of the law does truly ameliorate her position.
For example, as discussed by Reena Patel , the Hindu Succession Act 1956, which legally entitled women to independent property ownership, marked the first significant expression of equality towards both sexes. As Patel demonstrated, it was a superficial attempt of the law to grant equal property rights to both men and women, as there was a ‘traditional incapacity’ that was controlled by the ‘internal’ factors such as religion, social and cultural obligations which prevented women from owning property. Another example that discussed the limits of law as an effective tool of gender equality, has been assessed by Mary Marboreke , within the context of the law in Zimbabwe. According to her, as laws reinforce existing social relation, which are gendered power relations, the law reinforces gendered social relations played within cultural contexts, thus excluding women from participating in public rights to a large extent. Thus, the law offers a piece meal solution as it does not recognize the interest in a culturally coherent whole.
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In conclusion, the inherent paradox that exists in the principle of the ‘Rule of Law’ seems to be camouflaged as a result of its supposedly pragmatic nature. It is unlikely that the emancipation of women from the web of gender social structures can be addressed by a simple solution generated by the recent movement towards positive affirmation. Thus, until the legal structures take cognisance of the social context that indirectly defines the array of power relations, the gender neutrality of law, will perhaps, remain a myth.