JURISPRUDENCE

LAW 4420

FEMINISM
 INTRODUCTION
 Mary Wollstonecraft published one of the first feminist
treatises, “A Vindication of the Rights of Woman (1792)”,
advocated the social and moral equality of the sexes.
 In the US, it originated in the 1970s, possibly as part of the
critical legal studies movement.
 In its earlier years, the theoretical response of women
jurists and lawyers widely held perception of an exclusively
male ideology which, by its origin and nature, effectively
excluded women from significant participation in legal
affairs and institutionalised their formal and informal
subservience to men.
 The feminist jurisprudence would argue that, when it comes
to the factors to be taken into account in the formulation of a
legal system, a woman is viewed as an outsider.
 ESSENCE OF FEMINIST JURISPRUDENCE
 It is a body of legal theory and comment associated with
jurists who accept the view that the progress of society as a
whole requires an intensive, informed struggle against the
legal ideologies and practices associated with the
patriarchal (it connotes ‘political’ structure that values
men more than women) form of society.
 In place of a ‘gendered jurisprudence’, the movement
seeks to build the foundations of a legal theory which will
neither exclude nor marginalise the historical
experience and the contemporary situations of women.
 The feminist jurisprudence wanted to bring an end to
patriarch way of thinking.
 In other words, maleness is treated as the starting point.
 GENDERED NATURE IN THE USAGE OF LEGAL
LANGUAGE
 To the feminists, in law, where patriarchy prevails it is the male
experiences and perspectives that are the reference point in
relation to which the law is fixed.
 Throughout the history of Anglo-American jurisprudence, the
primary linguists of law have almost exclusively been white
educated and economically privileged men.
 Men have shaped it, they have defined it, they have interpreted
it and given it meaning consistent with their understanding of the
world and of the people “other” than them.
 Hence, as the men of the law have defined law in their own
image, law has excluded or marginalised voices and meanings of
these “others”.
 What are some examples of male experiences and perspectives
being regarded as the norm?
 SCHOOLS OF FEMINIST JURISPRUDENCE:
LIBERAL FEMINISM
 “We are all in essence the same as you (men), so why should we
be treated differently, as inferiors?”
 In the 1960s and 1970s, it had seemed natural to feminists that
liberalism should be the appropriate weapon with which to fight
for improvements in the position of women.
 This school of feminist jurisprudence appears to concern itself
largely with matters such as equal rights and opportunities and
the extension and intensification of constitutional rights for
American women, e.g., Rights to citizenship, voting and
entrance into universities etc.
 The school emphasises the concept of women as autonomous
members of society.
 Liberalism had claimed rights for women, and had secured rights
for women.
 SCHOOLS OF FEMINIST JURISPRUDENCE:
CULTURAL FEMINISM
 Gilligan talks of two modes: feminine mode and masculine
mode.
 For cultural feminists, women’s difference from men is not
a source of potential weakness but a source of strength.
 The movement wishes to utilise in its campaign the ‘different
voices’ of women which will testify to an understanding of
the significance of women’s comprehension of relationships
and the ‘essential connectedness’ of the human experience.
 Carol Gilligan, whose book ‘In a Different Voice’ leads the
way, women value intimacy and have a sense of connectedness
to life stemming from the fact that ‘it is women who are the
primary caretakers of young children’.
 SCHOOLS OF FEMINIST JURISPRUDENCE:
RADICAL FEMINISM

 Radical feminism relates to jurisprudential thought,

which stresses the importance of perceiving women as
one class dominated by another, with a resulting class
struggle.

 Mackinnon: since ‘sexuality’ as revealed from

biological differences is the common factor for all
female; this makes ‘consciousness-raising’ a feasible
option for the feminist movement.

 Portray
as though there is an intense class war between
men and women.
 SCHOOLS OF FEMINIST JURISPRUDENCE:
POST-MODERN FEMINISM
 Christine Littleton wrote “Reconstructing Sexual Equality” in
1987.
 According to this school of feminist jurisprudence, medical
knowledge of how chromosomes shape sexuality informed us that
there is no clear-cut distinction between male and female.
 The Post-modernist argue that maleness or femaleness in a
person is a matter of degree.
 To the Post-modernist, if the heterosexual dichotomy is upheld,
law is still too multifaceted as human nature is to be masculine.
 The school rejects equality and view it as ‘construct which
must be reconstructed’.
 In particular to indulge in arguments with the upholders of a
male dominated jurisprudence on terms of its own choosing can
never be to the advantage of women as a group.
 CRITICISMS OF FEMINIST JURISPRUDENCE

 Why should the subordination of women be the subject

of special attention, in comparison with the
subordination that is based on race, colour, or religion?
 Contradictions of feminists’ views or opinions, in
particular between Mackinnon and Gilligan.
 Mackinnon saw the ‘difference’ between men and
women as a weakness, i.e., woman is seen as an object of
man.
 On the other hand, Gilligan saw the ‘difference’
between men and women as something to be celebrated,
i.e., a woman is seen as caring and connected to others.
 Thus, matters such as pregnancy, childbirth and child
rearing should be celebrated and not to be despair.
 CONT.
 The justification for a jurisprudence which totally
rejects ‘male-dominated law’ has been rejected as
lacking any bias in legal history and practice.
(Construct!!!)
 Male and female jurists and practitioners have
cautioned against attempts to present sectional interests in
terms of universals, and have urged rejection of divisive
nature of jurisprudence from women’s perspective.
 A changed society and an appropriate jurisprudence
will emerge, it is argued that the society flourish only
with the united activities of men and women.
 The presumption that the ‘new perspective’ advocated
by feminist jurists will be free from the type of distortion
or discrimination which is held to characterise and label
the ideology of patriarchy is arguable.
 CONCLUSION
 Despite the criticisms presented above, the feminists
have fought vigorously and effectively against the
exclusion of women.
 They were able to inspire and direct a highly-publicised
campaign against violation of women’s civil rights.
 In this sense, feminism serves as the demand to consider
who we are, and what a society we truly want.
 Due to the voice of feminists across the globe, today the
international community recognises the importance of
treating women equal as human beings but not as objects
of men.
 The Convention on the Elimination of all Forms of
Discrimination Against Women 1979 (CEDAW)