PROF.

SHIVANJALI BHAGAT
4/1/20
Critical Feminist Jurisprudence

1. Introduction :-

Feminist legal theory, also known as feminist jurisprudence, is based on

the belief that the law has been fundamental in women's historical subordination. The
project of feminist legal theory is twofold. First, feminist jurisprudence seeks to explain
ways in which the law played a role in women's former subordinate status. Second,
feminist legal theory is dedicated to changing women's status through a rework of the
law and its approach to gender. It is a critique of American law that was created to
change the way women were treated and how judges had applied the law in order to
keep women in the same position they had been in for years. The women who worked
in this area viewed law as holding women in a lower place in society than men based
on gender assumptions, and judges have therefore relied on these assumptions to make
their decisions.
This movement originated in the 1960s and 1970s with the purpose of
achieving equality for women by challenging laws that made distinctions on the basis
of sex. It was crucial to allowing women to become their own people through becoming
financially independent and having the ability to find real jobs that were not available
to them before due to discrimination in employment. However, feminist legal theorists
today extend their work beyond overt discrimination by employing a variety of
approaches to understand and address how the law contributes to gender inequality.

2. Meaning of Feminist Jurisprudence :-

Feminist jurisprudence is the study of the construction and workings of
the law from perspectives of women and women’s lives. Feminist jurisprudence focuses
on the way in law has been structured that denies women’s experiences and needs. It is
basically concerned with an analysis of the law and legal system intended to show that
how existing law is structured to promote the interests of the males and to exclude
females. In this effort feminist jurisprudence analyses how patriarchal domination and
its assumptions in the mind of law-makers have shaped the content of laws in different
areas of law including trust law, family law, contract, property law etc.

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Critical Feminist Jurisprudence

3. Origins of Feminism :-
The first known use of the term feminist jurisprudence was in the late
1970s by Ann Scales during the planning process for Celebration 25, a party and
conference held in 1978 to celebrate the twenty-fifth anniversary of the first women
graduating from Harvard Law School. The term was first published in 1978 in the first
issue of the Harvard Women's Law Journal.
In 1984 Martha Fineman founded the Feminism and Legal Theory Project
at the University of Wisconsin Law School to explore the relationships between
feminist theory, practice, and law, which has been instrumental in the development of
feminist legal theory.

4. FEMINIST LEGAL THEORY :-

There are several different types of feminist theory,

A. Liberal Feminist Theory:-

Liberal feminism is rooted in the belief that women as well as men are
rights bearing and autonomous human beings. Liberal feminism central core aspects
are rationality, individual choice, equal rights and equal opportunities for women.
Liberal feminists challenge the assumption of male authority and
superiority and seek to erase gender based distinctions recognized by law. Liberal
feminists assert that women are similar to men in their ability to operate in public
world. And they focuses on equal opportunity to make their own choices.
Liberal feminism considers liberalism as the appropriate weapon to
fight for improvements in the position of women. In support of their argument they
site the examples of social legislation passed by the British Parliament, and
conclude that liberalism had claimed and secured rights for women.

Criticism on Liberal Feminism :-

1. Liberal feminism as a study allows too much of its forces to fall on a
metamorphosis of women into men hence disregard the traditional role of
women.

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Critical Feminist Jurisprudence

2. By focusing on the individual it puts over emphasis on the rational instead of

the emotional state whereas a human is intrinsically both, and in doing so
discredits the importance of a community.

B. Radical feminist theory :-

Radical feminism focuses more on the issues that affect women’s private
lives. This type of feminists focus on women as a class, and particularly a class that
is dominated by another class, the male class. Unlike the liberal feminists radical
feminism builds its arguments that focus the differences between men and women.
Power and sexuality are the central focus on radical feminism. They
emphasizes the patriarchal roots of inequality between men and women.
Radical feminism views patriarchy as dividing rights, privileges and
power primarily by gender, and as result oppressing women and privileging men.
Radical feminism opposes existing political and social organization in general
because it is inherently tied to patriarchy.

C. Postmodern feminism :-
Postmodern feminist legal theorists reject the liberal equality idea that
women are like men as well as the difference theory idea that women are inherently
different from men. This is because they do not believe in singular truths and instead
see truths as multiple and based on experience and perspective. Feminists from
the postmodern camp use a method known as deconstruction in which they look at
laws to find hidden biases within them. Postmodern feminists use deconstruction to
demonstrate that laws should not be unchangeable since they are created by people
with biases and may therefore contribute to female oppression.

5. Common characteristics of different theories of feminist jurisprudence:-

Feminism under whatever label, shares a common aim- the betterment of
women. The question is how to achieve this aim. All feminist continues to raise
questions which are designed to identify the gender implications of rules and practices

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which might otherwise appear to be neutral or objective. Feminist jurisprudence

examines how the law fails to take into account the experiences and values that seem
more typical of women than men, or how existing legal standards and concepts might
disadvantage women. It also tries to expose those features of the legal system which
discriminate against or are disadvantageous to women, the manner in which they
operate, and to suggest corrective measures.

6. Conclusion :-
The main concern of feminist theory is the treatment of women by the
legal system, and the perception or lack of perception of women’s experiences and
needs in law. In other words, it is the extension of the feminist perspective to an analysis
and critique of law.
In India, feminist views patriarchy as the main reason for the
subordination of women. Patriarchy is the ordering of society under which standards-
political, economic, legal, social- are set by and fixed in the interests of men. In such a
society men are more highly valued than women. Naturally the political structure of
that society also values men more than women. In patriarchal society, experiences and
perspectives of males are the reference points in relation to which the law fixed. Even
when laws are enacted for women, it is men’s understanding of women, their nature,
capacities, and experiences that have informed the law. In short, law sees women
through the male eye.
Feminist jurisprudence challenges the claim by those in power that the law
is neutral, detached, objective, and disinterested. Enumerating instances of
disadvantages and discriminations that women had to fight against- as in the case of
inheritance and property rights, access to education and employment, right to vote etc.
feminist jurisprudence believes that the system will not be free from gender bias until
women’s lives are taken by law as seriously as men’s.
Feminist jurisprudence may therefore be described as an approach which
challenges the male-centric approach of legal theory and practice, and which seeks to
incorporate feminist reasoning into law, and legal scholarship.