Feminism

Feminist jurisprudence is a philosophy of law based on the political economic and social
equality of sexes.

- It seeks to analyse and redress traditional legal theory and practice. - It focuses on the
ways in which laws has been structured that has led to the denial of women’s
experiences and needs.
- The use of law as an instrument to oppress women, without regard to women’s
rights.

- It is a strong protest against discrimination and resistance to injustice to womankind. -

The character of law is unjust, unfair, insulting, degrading devaluing against
women.

- It focuses on the emancipation (freedom) of women in a patriarchal system. - Feminists

claim that the standards of the society are all set by, and fixed in the interests of, men,
who are more highly valued than women.
- They believe that history was written from a male point of view and does not
reflect women’s role in making history and structuring the society.
- Male characteristics are presented as a norm, while female characteristics are
considered a deviation from the norm.
- In law, where patriarchy prevails, it is male experience and perspective that are
the reference point in relation to which the law is fixed.

- Feminists challenge the belief that the biological make-up of men and women is so
different that certain behaviour can be attributed on the basis of sex.
- They believe that gender is created socially, not biologically.
- Sex determines matters such as physical appearance and reproductive capacity,
but not psychological, moral or social traits.

In the past, the legal status of women were submerged in men.

- Women were treated like chattels, and were considered as ‘property’ of their
husbands.
- Blackstone maxim under the Common Law: By marriage, the husband and wife
are one person in law, that is, the very being or legal existence of women is
suspended during marriage.
- E.g: Women lose their maiden name upon marriage

- Women were inferior because of their biological make-up as child bearers - They were
only considered superior because of their moral purity, delicacy and civil
propriety (mannerisms).

- Although there was an increase in citizenship rights of men, an equivalent was not
 granted to women; simple legal rights were not available.
- Women were not given the right to vote
- “A man would be ennobled (dignified) by possession of the vote, but a
woman would be degraded by it because she would lose the admirable
attributes of her sex like gentleness, affection and domesticity.”
- In America, a woman named Susan Anthony was prosecuted for the
crime of voting in an election in 1872.

- Women were not granted the right to practise as lawyers

- Most States in America required a court decision, an act of the
legislature, or both, in order for a woman to be admitted to the bar.
- Bradwell v Illinois: A woman could not be allowed to engage in legal
practice. Legal practice was not meant for women. The paramount
destiny and mission of women was to fulfil the noble and benign
offices of wife and mother.

However, feminist jurisprudence is not uniform. Although the different groups of feminist
share the same view of freeing women from oppression, they each have a distinct aim.

There are four major groups within feminist jurisprudence:

Liberal equality model

- A model which operates from the liberal legal paradigm
- Liberal feminists focus on ensuring that women are afforded genuine equality -
They assert that equality amounts to equal opportunity
- They seek for equal rights for women to be at par with men; to aspire to make
women’s lives as valuable as those of men; for women to be treated just the
same
- Everyone is created as an equal and should not be denied equality of
opportunity because of gender.

- Liberal feminists argue that society holds the false belief that women are, by nature,
less intellectually and physically capable than men; thus it tends to discriminate
against women in many aspects.
- They believe that female subordination (submission to a lower class; a state of
inferiority) is rooted in a set of customary and legal constraints that blocks women’s
entrance to and success in the public world.

- Liberal feminists believe that it is wrong to discriminate women in life’s opportunities. -

To deny them a role in the public life of their nations, and to only narrow them down to
the opportunity of giving birth and taking care of children.

- Liberal feminists focus their efforts on social change through the construction of
legislation and regulation of employment practices.
 - They demand equal opportunities and participation in the management of the
society through legal reforms, increased participation in the political origins,
education and training.
- Emmeline Pankhurst was a British political activist of the 20th century and
leader of the British suffragette movement who helped women win
the right to vote.
- The Representation of People Act 1918 was amended to allow women
above 30 years old in England to vote and even stand for election.

- Liberal feminism is the most dominant political outlook of the West in the modern day
era
- They believe that women are rights-bearers, individuals who have inalienable
rights (rights which cannot be challenged)
- They wish to move together or forward with men
Criticisms:
- Liberal feminists are individualistic and self-centred
- Its individualistic assumptions make it difficult to see the ways in which
underlying social structures and values disadvantage women. These critics
believe that institutional changes like the introduction of women’s suffrage
(right to vote) are insufficient to emancipate women.
- Liberal feminism focuses on the individual, and in doing so, discredits the
importance of the community.

- Even if there are changes in the judicial system that are favourable to equal rights of
women, and women are no longer dependent on men, they would still be living in a
largely patriarchal society.
- Only changes in societal mind-set can effect change in the status of women and
no amount of legislature can change that.

- Equality arguments cannot succeed in obtaining justice for women. - Where the law has
defined women as being different from men, legal subjects cannot be
constructed as gender neutral.
- To argue otherwise would be to ask for the law to be blind and disregard the
concept of man and woman
- Liberal feminists have no regard for differences between sexes

- Liberal feminism reflects only the values of middle-class white women and has largely
ignored women of different races, cultures or classes.

Radical feminism

- This model focuses on differences between men and women, and supports affirmative
measures to challenge inequalities.
- Radical feminists narrow their focus to the more biological aspect of women
- They reject liberal feminism and view the legal system as a mechanism for the
continuance of male dominance
- Catherine Mackinnon is a leading feminist of this model.

- MacKinnon argues that women’s sexuality is socially constructed by male dominance

and the sexual domination of women by men is a primary source of the general social
subordination of women.
- Women have been socially conditioned to want and wish what men expect from
them.
- Thus, it is through sexuality that men dominate women.

- Radical feminists believe sexism is so deeply rooted in society that the only cure is to
eliminate the concept of gender completely.
- They claim that the entire traditional family system is sexist, where men are
expected to work while women are expected to care for children and clean
the house.
- This traditional dichotomy maintains men as economically in power over
women, and should be rejected.

- They questioned as to why women must adopt certain roles based on their
biology, just as why men adopt certain other roles based on gender. - They
suggest changes, such as finding technology that will allow babies to be grown
outside of a woman’s body, to promote equality between men and women.
- This will allow women to avoid missing work for maternity leave, which
they argue is one of the reasons why women are not promoted as
quickly as men.

- Mackinnon asserts that the very nature of law and legal method is male, and thus, the
existing law is totally inadequate.
- The source of women’s exploitation is men themselves
- Oppression of women are a result of the laws regulated by men -
Mackinnon proposed for women to take control of these laws
- They fought for laws of abortion which disregards a woman’s right to her
body
- The King v Bourne: Women should have the right to abortion
pursuant to Article 12, CEDAW.
- They believe that sexual violence arises as a result of an increase in
pornography which should be regulated
- They believe that the law on rape is structured from a male standpoint. -
When the judge examines a situation of rape, it is man’s perception and
not the woman’s sense of injury that prevails.
- There is a tendency for the judge to presume consent in cases
 involving a prostitute, a hitchhiker, or a woman dressed in a
short skirt, thus shifting the blame onto women.

- Radical feminists argue that the legal system, either parts or as a whole, must be
abandoned.
- It needs a fundamental overhaul in order to become a good tool to serve the
needs of women
- Laws which only seek to enhance the position of men should be looked into and
revised
- There should be changes in the law and special treatment to deal with
inequalities of power
- Through their efforts, radical feminists have left a profound effect on the law.

- People of California v Inez Garcia: A woman claimed that two men, allegedly her
boyfriend and his friend, had attempted to rape her. She struggled and managed to
kill them. She was convicted for second degree murder and spent two years in the
California Institution for Women before her appeal was heard.
- At her retrial, she was represented by a feminist attorney, Susan Jordan, who
argued that the law on the defence of provocation is distorted as it is biased
against women and fails to take into account the nature of women - The
argument convinced the jury, and was freed
- This case was construed in legal circles as a ruling in favour of a woman’s right to
use deadly force against sexual assault which caused the law on the defence
of provocation to be looked into

- R v Ahluwalia: The defence of provocation should be revised because unlike men who
immediately retaliate upon grave danger, women are more patient and tend to
accumulate the suffering and tension that they have felt until a point where they
would lose control.

- R v R: The defendant was charged for the attempted rape of his wife. It was argued that
the implied consent by the wife was given by having remain married to the man, and
that it acts a lawful defence. However, HOL overturned the matrimonial exception
to rape and upheld the defendant’s conviction.
- Marriage in modern timesisregarded as a partnership of equals, and no longer
one in which the wife must be the subordinate chattel of the husband - The
proposition that by marriage a wife gives her irrevocable consent to sexual
intercourse with her husband under all circumstances and irrespective of the
state of her health or how she happens to be feeling at the time is unacceptable
in modern times.
Criticisms:

- Radical feminists are oppositional in nature, thus, they suffer from problems in
 confrontation, making it hard to seek what they want from men
- Radical feminists over-emphasize factors that separate women from men, such as a
woman’s biological aspect.
- It is not practical to abolish the concept of gender completely as by nature, women and
men are different and have different needs.
- Despite rejecting the liberal feminism model, they have pointed out that the law itself is
of male dominance.
- Thus, they too wish to be protected as women, which shows that they are
impliedly promoting equality whereby everyone is entitled to be subjected to
the same undiscriminating law.

Cultural difference model

- The cultural difference model emphasizes the significance of gender differences and
holds that these differences should not be obscured by the law, but should be taken
into account by it.
- Women are different in disposition and nature from men
- Only by taking into account such differences can the law provide adequate
remedies for women’s situation, which is in fact distinct from men’s
- Carol Gilligan is a leading feminist of this model.

- Cultural difference feminists seek to be identified as men and women -

Law must take into account the women’s point of view
- Gilligan asserts that men and women have different voices even if they use the same
language.
- Men value individual achievement, whereas women’s morality is based on
connections and human relationships.
- Women’s concept of value revolves around intimacy, nurturance,
community, responsibility and care, whereas men’s concept of value
revolves around autonomy, individuality, justice and rights.
- Men and women reason out differently in solving problems
- Men focus on general entitlement, how problems should be solved -
Women emphasise on personal things, seek compromises so that
everyone’s feelings would be taken into consideration
- Women think in terms of the needs of others, rather than the
rights of other because women materially, physically and
psychologically provide for the needs of others.

- By virtue of the differences, they seek for the law to address such differences between
men and women, even in regards to trivial things.
- Cultural difference feminists accept women for being women
- They seek for the society to value feminine qualities
- Women have different needs which require different legal remedies, thus the
law must recognise differences that are relevant to women’s lives, status and
 possibilities.
- E.g: They argue that special treatment should be accorded to women in cases
such as pregnancy as it is different from general sickness or disability. If
sufficient maternity leave is not given, this may cause women to lose jobs.
- Noorfadilla Saikin v Chayed Basirun: Such biological function should not
be a reason for women to lose their jobs because the law must
recognize this aspect of a woman.
- Sec. 37 of the Malaysian Employment Act recognises women’s
right to paid maternity leave of no less than 60 days.

- Micheal M v Superior Court: A 17 year old boy was charged for statutory rape and
sought to challenge the statutory rape laws, where it is provided that it is an offence
for a man to have sexual intercourse with a woman under 18 years of age. It was
contended that the law denied him equal protection because he was being
prosecuted and his 16 year old partner was not.
- In applying the cultural difference approach, the court rejected the contention
and held: Women are exposed to the risk of pregnancy and there was no need
for them to be exposed further to the risk of prosecution. The right to
equality fails to recognise that women are more likely to be sexually
exploited than men.

Criticisms:

- Cultural difference feminists undermine the capabilities of women to go beyond what

they are capable of.
- Their approach causes women to be limited to certain type of attitudes and characters.
- Women who do not fulfil the character may seem unnatural or underdeveloped.
- It is also contradicting in a sense that even if a woman fulfils all the feminine
qualities, she will be considered as a mother and valued, but at the same
time, she might be devalued by society because the only role that she plays is
that of a mother.

Post-modern feminism

- Post-modern feminists claim that there is no such thing as women’s universal right -
Each person is different, and each individual must be considered in accordance with her
own needs and aspirations

- The quest of other groups are only reflective of Western-Caucasian women - The groups
cannot be grouped together and consider their approach universalistic
- They object to the idea that there can be any universal women’s voice and have
criticized feminists for implicitly basing their work on the experiences of white,
middle class, heterosexual women.
- They claim that women's subordination has no single cause or single solution - They
seek to explore the ways in which race, class, sexual orientation, and other aspects of
 subordination interact with gender and to uncover the implicit, detrimental assumptions
that have often been employed in the different feminist models.

- In recognising this approach, the Convention on Elimination of All Forms of

Discrimination against Women (CEDAW) allows each State party to make reservations
suited to women within the country.
- E.g: Malaysia, which ratified CEDAW in 1995, has made a reservation against
Art. 16 which accords equal rights and obligations upon both parties to a
marriage during and after its dissolution.

Criticisms:

- Post-modern feminists do not offer a specific solution or a clear path to action - The
model is very anti-essentialist as it holds no belief in an essence of feminism, such as sex
or gender as propounded by the other models
- This causes the model to run the risk of weakening the basis of any politics of
action based on the differences between men and women

General criticisms against feminism (Anti-feminism)

- Feminists claim that male perspectives are biased, but fail to realise that women’s
perspectives are biased too
- Feminists cannot escape the criticism that feminism promotes the female
perspective
- The post-modern feminism movement itself represents the idea of individualism, which
is a male inclination or trait
- Each model of feminism have different ideals
- They are all opposed to one another, which gives rise to an individualistic
approach
- Feminism has resulted in changes to society's previous norms relating to sexuality,
which is deemed as detrimental to traditional values or conservative religious beliefs -
E.g: The decline of marriage
- Many traditionalists (anti-feminists) oppose women's entry into the workforce, political
office, and the voting process, as well as the lessening of male authority in families.
- They argue that a change of women’s roles is a destructive force that endangers
the family, or is contrary to religious morals.
- It is claimed to be a social disaster that continues to take its toll on families and
contributes to a descent by increasingly disconnected individuals into social
chaos.
- Some claim that feminism is a denial of the natural differences between the genders,
and an attempt to reprogram people against their biological tendencies. - Despite
promoting equality, feminism ignores issues of rights unique to males - The feminist
movements has achieved its aims and are now seeking a higher status for women than
for men through special rights and exemption
Programme of action

Where the four different models of feminism have failed to reach a consensus on a particular
aim for achieving equality and dignity of women, programmes of action are thus required in
order to adapt the approaches towards one common goal.

Prevention and raising awareness:

- Prevention initiatives are grouped into two areas of focus:

- Educate to change attitudes and behaviours and to promote respectful, non
violent relationships.
- Engage organisations and communities to promote gender equity and stop
violence.
- Actions to address the underlying causes of violence against women and
children including unequal power relations, adherence to rigid gender
stereotypes and broader cultures of violence.

- Article 5, CEDAW enjoins State parties to take all appropriate measures to: - Modify
social and cultural patterns of conduct of men and women with a view to
achieving the elimination of prejudices and custom and other practices based
on the idea of inferiority or superiority of either sexes or on stereotyped roles
for men and women.

- Existing organizations in Malaysia are consistently advocating for women’s rights: -

Women’s Aid Organisation has aims such as:
- To undertake and advocate with governmental and non-governmental
organisations the eradication of factors that contribute to the
inequality and subordination of women through law, policy and
institutional reforms.
- To create an awareness and better understanding among individuals,
public and relevant agencies on the issues of violence against women
and the underlying inequalities.
- Sisters in Islam launched a Musawah project, which is a global movement for
equality and justice in the Muslim family, to create awareness to all the wives
and women regarding the protection available for victims of abuse and sexual
harassment.

Welfare equality:

- Women, despite their ability to bear a child, should be accorded equal opportunities of
employment and wages.
- Gabrielle Defrenne II: It is the purpose of the law to ensure equality between all
persons. Therefore, a woman should enjoy the same rate of wages and entitled to the
same benefits and pension plans that men of equal qualification are entitled to.
- Unlike in Beatrice Fernandez v Sistem Penerbangan Malaysia, where the court upheld
 the validity of the contractual term that prohibited the appellant from being pregnant
whilst employed as a stewardess, women should not be prohibited from engaging in
a certain field of work due to their biological nature.

Fundamental freedom:

- To ensure that there were no more discriminatory laws or practices against women
both in public and private sectors, as well as in society at large, in 2001, after
submissions from the Ministry of Women, Family, and Community Development
(MWFCD), SUHAKAM and Women NGOs, the government decided to amend Art. 8(2)
of the Federal Constitution by including gender as a basis for non-discrimination.
- Noorfadilla Saikin v Chayed Basirun: The plaintiff’s placement as a temporary
teacher was withdrawn upon the discovery that she was three months
pregnant. Held: The defendants’ act of revoking and withdrawing her
placement because she was pregnant constituted a violation of. Art 8(2).
- This is in line with a women’s right to be pregnant and to have equal
opportunity to the access of employment during such pregnancy under
Art. 11, CEDAW, and Art. 3, CEDAW which guarantees women’s
exercise and enjoyment of human rights and fundamental freedom,
including the rights to control her body.

Legal recognition:

- In the past, due to high levels of prejudice, judges refused to regard women as being
covered by the word ‘person’ in a statute.
- Wilson v Town Clerk: A group of women whose names were struck off the
register argued that the revising register was not empowered to do so. Held:
Removing the name of a woman from the voter roll was equal to removing
the name of a dog or a horse and since women were not ‘persons’ within
the meaning of the statute, they had no locus standi to bring the case.
- Women have since been accorded the legal recognition that they so rightfully deserve: -
Sec. 4, Married Women Act: Recognises women’s rights to sue and be sued as
though she is an unmarried woman.
- Women are no longer considered as a subordinate chattel of her
husband.
- Merrit v Merrit: Women have the right to take legal action against their
husband for a breach of contract.
- Sec. 4A, Married Women Act (after 1994 amendment): Allow women to take
action against their husbands for tortious acts resulting in injury.
- Yeo Bee Lin v Lee Eng Chee: A wife sued her husband for inflicting severe
injury on her by forcing her to listen to his sexual exploits with
another woman.