Gender Justice and Feminist Jurisprudence -

Assignment

Feminist Jurisprudence
Introduction
Various legal doctrines have evolved over time. A hypothesis may be useful at one point in time but
not at another. As a result, many theories are developing over time. Feminist Jurisprudence, one of
the emerging and evolving idea, is a division of critical legal studies and post-modernist legal theory.

The two terms in feminist jurisprudence are, Feminist is "in favour of women," and jurisprudence is
the “study of law”. There is no clear definition of feminist jurisprudence. Different jurists offered
varying views about this. In essence, however, feminist jurisprudence is the legal philosophy that is
founded on the political, economic, and social equality of the sexes. This viewpoint contends that the
law is not impartial and that men are granted power. According to this view, mainstream is
"malestream."

Feminist Legal Theory is another name for this theory. Many academics disagree with this theory.
They contend that a distinct school of legal thought deserving the name "Feminist Jurisprudence" is
not necessary. But a lot of academics disagree with this notion and agree that the idea of feminist
jurisprudence is truly significant today.

The Evolution of Feminist Jurisprudence

The more widespread women's liberation movement of the 1960s and 1970s, which attempted to
challenge and change the deeply ingrained patriarchal and gendered inequity that dominated
society, was directly related to the emergence of feminist jurisprudence. The goal of the women's
movement was to campaign for social and legal changes that would enhance women's potential and
lives by elevating gender and women's rights to the top of the political and cultural agenda.

The writings of feminist legal scholar Catharine MacKinnon, who contended that law was not an
impartial or objective body of rules but rather a tool for preserving and perpetuating systems of
power and oppression, were one of the major early inspirations on feminist jurisprudence. Law,
according to MacKinnon, is profoundly gendered, with men's interests and viewpoints frequently
being given preference over those of women. She called for an extensive rethink of the legal system's
underpinnings and its function in society.

Feminist jurisprudence also drew from an array of other fields and theoretical frameworks, such as
feminist theory, critical race theory, queer theory, and postcolonial theory, in order to discredit and
expose the ways in which the traditional foundations of law had been applied to maintain and
strengthen oppressive and domineering systems.

Feminist jurisprudence, notably in the fields of gender and women's rights, has had a considerable
influence on the evolution of law and legal doctrine during the course of the 20th century. It has
affected the enactment of legislation and regulations that deal with gender-based violence and
discrimination, the acceptance of various gender identities and expressions, and the inclusion of
various viewpoints and voices in legal education and the legal profession.

Feminist jurisprudence's significance

There is no moving over the fact that our society is patriarchal. Therefore, the creation of laws was a
result for males only. Essentially, the approach involved considering opinions from men. It was men's
understanding of women even when laws for women were passed for women. In essence, the law
has a male perspective on women. Many statues have these reflections that we can perceive, an
example is Marital Rape is still not recognized as a crime in India. Feminist Jurisprudence is a modern
concept. It started in the 1960s as a subgroup of the CLS (Critical legal studies) movement and Post-
modern Legal Theory.

Feminism and Feminist Jurisprudence

Feminist jurisprudence is distinct from feminism. The idea of feminism is not new. Feminism's past is
too old. The early advocate of feminism, Mary Wollstonecraft, published ‘A Vindication of The Rights
of Women’ in 1792, which helped establish women's rights and equality. And Charles Fourier is
credited for creating the phrase feminism.

However, feminist jurisprudence is a relatively new idea. It began in the 1960s as a subgroup of the
Post-modern Legal Theory and the Critical legal studies movement. Critical legal studies (CLS) is a
theory which states that the law is necessarily intertwined with social issues, particularly stating that
the law has inherent social biases. Proponents of CLS believe that the law supports the interests of
those who create the law. Proponents of Critical (postmodern) Legal Theory believes Society is never
governed by law, because people have to interpret laws and enforce them. Since people can
interpret laws any way they want, these, people, not the laws, are the real rulers. Law is no more
stable than its latest interpretation or application. Feminist legal theory as a sub group of CLS
examines the role of gender in the law.

Three Schools of Feminism

Within feminist law, there are three major schools of thought.

1. Inequality is the emphasis of radical or dominant feminism. It claims that men have
historically ruled women as a class, resulting in gender inequality. Feminist after going
through history, realized that women have always been credited as males’ property, be it her
father, husband, or brother. Gender is a matter of power for radical feminists. Radical
feminists argue that we should stand up against traditional techniques that focus only on
males and their masculinity. They claim that sexual equality must be built based on the
differences between men and women.
2. Traditional feminism, also known as liberal feminism, holds that women are just as logical as
men and should have the same freedom to make their own decisions. Our society has always
taught women that men are immature, and you should help them walk on the correct path.
But this society has also taught men that you are intellectually more capable, and you are
the one who should take decisions about your life and also about the life of women. This is
what traditional feminism wants to talk about.
3. Another school of feminist legal thinking is cultural feminists. They concentrate on and
embrace the distinctions between men and women; this group of thinkers claims that
women value connections, whereas men value abstract principles of rights and reasoning.
This school aims to provide women’s moral voices of caring and communal ideals equal
prominence.

Theories of Feminist Jurisprudence

The evolution of feminist legal thought has been affected by many forms of feminism. Feminist
jurisprudence is not homogeneous, despite feminists’ shared commitment to equality between men
and women. Feminism is divided into four schools: liberal, radical, cultural, and postmodern, with
equality being the early theme and aim of feminists in law.

1. Radical Feminism
 2. Liberal Feminism
3. Cultural Feminism
4. Post-Modern Feminism

Radical Feminism

Radical feminism is also known as dominating feminism because it views gender equality as a matter
of male dominance over women rather than a matter of equality. Male dominance is something that
features itself in almost all domains of life. Radical feminism is a feminist perspective that advocates
for a radical reorganization of society in which male supremacy is abolished in all social and
economic circumstances.

Radical feminists regard society as fundamentally a patriarchal society in which males dominate and
oppress women without any justified reason for doing it. They also strive to eliminate patriarchy by
challenging current social norms and structures to liberate everyone from an unfair society.
Inequality affects women, but it also causes harm to everyone at large. Multiple actions have been
taken to fight against such inequality. This involves fighting against women’s sexual objectification,
raising public awareness about issues like rape and violence against women, and questioning gender
roles from the beginning.

Liberal Feminism

The origins of modern liberal feminism can be traced back to the 18th century. Individualism was a
key element of this ideology, which indicated that individuals had the right to do anything they
wanted without any interference from others. After you have reached a certain age, you become
mature enough to take your own life decisions, and no one should have the right to stop you from
doing the same. Liberal feminism is a style of feminist thought that emphasizes women’s power to
retain their equality via their actions and decisions.

Its focus is on ensuring that women’s legal and political rights are equal to men’s because, for ages,
they haven’t been treated equally, and that too without a valid reason. Liberal feminists contend that
society believes that women are naturally less intellectually and physically adept than men. Because
of this, almost every woman faces discrimination at the workplace, social gatherings, and
marketplace. Liberal feminists think that female subordination stems from social and legal barriers
that stop women from entering and succeeding in the so-called public sphere. They work to achieve
gender equality through political and legal reforms.

Postmodern Feminism

According to postmodern feminism, inequality is a social construct and is a result of patriarchy, hence
it requires feminist reconstruction. The school emphasizes the process of self-definition and the
strategy for raising awareness and giving voice to the unknown women’s experiences. For example,
how a woman feels when she is touched by someone without her permission or feels when she is
not treated equally like her brother. These experiences have to be addressed and brought up on a
bigger platform. Also, both the liberal equality and difference theory ideas that women are
intrinsically different from males are rejected by postmodern feminist legal scholars. This is because
they believe that truths are numerous in number and are based on experience and perspective
rather than single truths. Feminists use a tactic in the postmodern school to look at legislation and
identify hidden biases within them. Postmodern feminists use deconstruction to show that laws
should not be rigid because they are made by humans who have biases and thus contribute to
female oppression.
Cultural Feminism

Cultural feminism focuses on the intellectual ability of a person and bases its reasoning on the same.
This school focuses on the disparities between men and women. It argues that feminism’s most
important task is to change institutions to reflect and accommodate values that they see as women’s
nurturing virtues, such as love, empathy, patience, and concern, rather than to include women into
patriarchy and prove that women are similar to men and can function like men and meet male
norms.

A feminist theory about a woman’s nature or essence tries to revalidate what cultural feminists see
as neglected female characteristics. It’s also a theory that celebrates the differences between men
and women and is okay with whatever the women have. It promotes independence and institution
building and is founded on an essentialist understanding of the differences between men and
women. They admit that men and women are different, and equality has to be brought in. But they
believe that this equality has to be brought without changing the intrinsic values that women are
born with.

India and Feminism

Our Constitution includes all of the safeguards necessary to defend the interests of women. We have
all the laws, but the execution we need is still in its preliminary stage. In National legal service
authority v. Union of India, it was held that the Preamble’s concepts of social, political justice,
economic, and equality of status and opportunity, and assuring the dignity of the individual recognize
the rights of one and all, and these essentials are designed for flowering the citizen’s personality to
its fullest. Equality is a notion that aids citizens in realizing their full potential.

Social justice does not imply equality before the law on paper but rather a translation of the
Constitution’s spirit inscribed in the Preamble. The Preamble is not enforceable , but it does give the
constitution a right direction. The Preamble reiterates the importance of ‘individual dignity,’ which
includes women’s dignity. When our Constitution including the preamble talk about women’s dignity,
we must take it forward. Our Constitution, which is considered the fountainhead of all laws, is gender
sensitive. The mindset of those who drafted our Constitution was focused on equality and placing
women on an equal footing in all aspects of life. As a society, it is up to us how we develop it and take
it further.

Conclusion
Men and women have historically been seen as being not just different but also unequal in terms of
social status and power. Men are assumed to be competitive, rational, aggressive, intelligent,
political, and dominant leaders, while women are assumed to be fragile, emotional, domestic,
caretaker, and underlings. Women have been purposefully cast as opposites to men through some
clever contrasts, such as behavioural traits. Every political and economic structure, including those
involving educational and religious institutions, as well as relationships and aesthetic standards, has
historically adhered to some variation of these presumptions. Unfortunately, the law is not an
exception. As a result, societies felt the need for feminist jurisprudence, and to achieve this goal,
feminists stood up, questioned male-insight laws or practices, provided examples of illegitimate
patriarchy, and provided guidance on how to establish "equality" for women globally.
REFERENCE:

https://www.law.cornell.edu

https://en.wikipedia.org/wiki/Feminist_legal_theory

Our Lives Before the Law: Judith A. Baer

Feminist Legal Theory (An Anti-essentialist Reader): Nancy E. Dowd, Michelle S. Jacobs