Feminist Jurisprudence

CLS 320
Introduction
• There is no easy and single answer on what feminism is.
• The women’s movement all over the world offers a wide
ranging feminist critique of society.
• What seems radical in the contemporary feminist analysis
parallels the critique made by feminists of the 19th century.
Introduction
• Both the early and contemporary feminists are engaged in a
fundamental re-examination of the role of women in all
spheres of life and of the relationships of men and women is
social, political, economic and cultural institutions.
• Both have defined women as an oppressed groups and have
traced the origin of women’s subjugation to male dominated
social institutions and value systems.
Introduction
• But there is a difference in the analysis of the origin of subordinate
status of women, the persisting lower status and what strategies are
to be adopted and devised to end this subordination.
• This difference, however has given rise to major ideological
movements.
Liberal Feminism
• The historical origin of contemporary liberal feminism goes back to
the 18th century.
• It was the age of reason.
• An important principle of this philosophy was individualism by which
was meant that an individual possesses the freedom to do what he
wishes without interference from others.
• Mary Wollstone Craft , William Thompson and John Stuart Mill are
well-known liberal feminists for their ardent support for women’s
causes.
Liberal Feminism
• General view of the liberal feminists is that subordination of women is
caused by social and legal barriers that block or preclude their access
to public sphere of politics and economics.
• Liberal feminists demand that liberals follow their own principles of
universal human rights and equality and demand equal treatment of
women and men, insisting that women are fundamentally similar to
men.
• These theorists argue for law to be gender blind and that there
should be no restrictions or special assistance on the grounds of
gender.
Liberal Feminism
• Liberal feminists’ insistence on equal treatment has made significant
gains to women in the 1960s and 1970s- it had got women access to
employment, education and politics.
• However, while equal treatment strategy proved relatively successful
in challenging explicitly discriminatory laws and ‘unreasonable
classifications,’ the tactic was less successful in challenging laws
where different treatment was justified on the basis of purportedly
‘real’ differences.
Criticism
• Liberal feminism embraces male standards: Liberal feminists have
not challenged legal concepts nor have they sought transformation of
law, they only asked for its gender-neutrality.
• Moreover, equal treatment of socially unequal individuals does not
result in ‘real’ equality and in many cases only exaggerate the
disparities.
• MacKinnon: Under gender-neutral rule, men in effect ‘get preferred
because society advantages them before they get into account, and
law is prohibited from taking that preference into account because
that would mean taking gender into account’
Liberal Feminism
• The liberals accepted the common arrangement by which the man
earns the family income and the wife superintends the domestic
expenditure.
• The wife if she goes out to work will not be able to perform the tasks
of child rearing and house management well and, therefore, a wife
should contribute by her labour.
• The sex role differences are accepted but with a proviso that both are
considered equal.
Enlargement of liberal feminism
• The liberal feminism has since widen the concept of
equality beyond the formal equality in civil and
political spheres but has also move to the
improvement in social customs, institutions, laws and
attitudes while accepting the social structure.
Cultural Feminism
• Cultural feminism (relational feminism/ ‘different voice’ feminism)
reverses the focus of liberal feminism- it is concerned with women’s
differences from men.
• It argues that important task for feminism is not to assimilate women
into patriarchy, and prove that women are similar to men and can
function like men and meet male norms, but to change institutions to
reflect and accommodate values that they see as belonging to
women such as nurturing virtues, such as love, empathy, patience and
concern.
Carol Gilligan: In a Different Voice
• Women typically undergo a different moral development: She finds
that male respondents typically respond to the moral problems with
an ‘ethic of justice,’ while her female respondents typically respond
with an ‘ethic of care.’
• ‘Ethic of justice’ involves abstracting the moral problems from the
interpersonal relationship and balancing of rights in hierarchical
fashion, while the ‘ethic of care’ represents a relational and
contextual approach to moral problems, which values empathy and
relationship-Gilligan argues for recognizing the values of both voices,
and in particular for not devaluating the ‘ethic of care.’
Robin West’s article Jurisprudence and Gender

• Modern jurisprudence was ‘masculine’ because it proceeded from a

‘separation thesis’- the belief that individual was first and foremost
materially separate from other individuals, which, she claimed was
not true for women who were materially connected to other
individuals, through critical experiences, notably pregnancy and and
love.
Criticism
• Cultural feminism has invoked a lot of criticism from different feminist
scholars.
• The most recurring criticism was that the portrait of women painted
by cultural feminism resembles the 19th century stereotyped portrait
of a woman as naturally emotional, domestic and nurturing or
“domesticated” wife.
• Critics argue that some traits of cultural feminism have since
penetrated labour laws: women are excluded from certain jobs in
order to “protect” them.
Radical Feminist Jurisprudence
• Also known as dominant feminism, it does not see the issue of gender
equality as an issue of difference and sameness but rather as issues of
domination of women by men.
• The premise from which the radical feminists proceeded was that the
roots of subjugation lie in the biological family, the hierarchal sexual
division of society and sex roles themselves, factors which must be
basically recognised if true gender equality has to be established.
• The biological destination is used to distinguish social functions and
power
Biological Differences
• Biological differences result in the male domination of power over
women.
• Patriarchy is identified by the radical feminists as an autonomous
historical fact more rooted in biology than in economy and they
consider gender relations to be the primary form of oppression.
• The main assertion of radical feminists has not been only removal of
all sex distinctions but also that there being no place for men in their
lives.
• They believed in sexual preference, control over one’s body, free sex
and collective child care.
Radical Feminist Jurisprudence
• According to them, masculine hostility manifests itself through rape,
pornography and sexual violence.
• The overthrow of male dominance requires a complete sexual
revolution which would destroy traditional sex taboos.
• Criticism: One dimensional and representation of women exclusively
as victims.
Postmodern Feminist Jurisprudence
• It is opposed to creation of any ‘Grand Theory’ and do not believe in a
single theory or a single ‘truth.’
• It sees individual as ‘”constituted” from multiple institutional and
ideological forces that, in various ways, overlap, intersect and even
contradict each-other.
• It also sees the dichotomy of victim and oppressor a false one (as any
other dichotomy).
Postmodern Feminist Jurisprudence
• Postmodern feminists do not offer single solution to the oppression of
women, first because they don’t believe there is a single solution to
anything, and second, because they think that any proposed solution
would suggest that all women’s experiences are alike and that
women’s oppression is a unitary thing.
• They believe that attacking oppression of women requires contextual
judgment that recognizes and accommodates the particularity of
human experience.
• Criticism: Since they are opposed to theories, they are destroyers of
theories rather than building them.
Socialist Feminist Jurisprudence
• Woman’s inferior status is rooted in private property and a class
divided society.
• Sexist ideology and structures such as the family maintain women’s
inferiority status in society.
• They also feel that overthrow of the capitalist system by itself will not
mean transformation of patriarchal ideology.
• It would be necessary to organise struggles simultaneously against
capitalism and patriarchy.
Socialist Feminist Jurisprudence
• Social feminists are of the view that the
powerlessness of women in society is rooted in four
basic structures: production, reproduction, sexuality
and socialization of children.
Feminist Jurisprudence
• Feminist jurisprudence, thus, is an awareness of women’s oppression
and exploitation in society, at work and within the family, and
conscious action by women and ,men to change this situation.
• It is an awareness of the political and social implications of sex
determination in the society.
• Anyone who recognises the existence of sexism, male domination and
patriarchy and who takes some action against it is considered to be a
feminist jurist.