INTRODUCTION 1. 1. Introduction: The term ‘feminism’ has been a part of everyday language since the 1960s. It is invariably linked to the women’s movement and an attempt to advance the social standing of women. Feminism as a theory can be divided into four types : (i) Liberal feminism, which accepts the law and its reasoning process. Liberalism is seen as the ideal tool to fight oppression; (ii) Radical feminism, which rejects the views of liberal feminists, since the reasoning structure of law corresponds with the patterns of socialisation, experience and values of a particular group of privileged, educated men.
Radical feminism seeks to demystify the neutrality of law, and to make the law comprehend that women’s definitions have been excluded and marginalized; (iii) Cultural Feminism, which differs from both radical and liberal feminism in seeing women as caring and connected to others. It believes in restructuring of law and society to accommodate the values of nurturing, caring and loving that are traditionally associated with women; (iv) Post-modern Feminism- it rejects equality and the idea of a woman’s point of view as a fiction that merely serves to bind a woman to her identity.
Practical solutions to concrete legal situations are inquired, rather than abstract notions of the nature of law. All feminists, however, adhere to two basic positions: “that society is patriarchal and that society subordinates women to men. ” Feminist research developed as a response to two perceived related failings in western social sciences. The first was the “relative invisibility of women and a lack of concern with the gender-specific issues that influenced their lives. ” The second concerned the “practices of social research and the processes through which knowledge was constructed. It was argued that the social world had been studied from the perspective of male interests and concerns, and in ignorance of the different picture that emerged when focussing on women’s lives and ways of seeing. “Knowledge, which was presented as neutral, objective and value-free, was, instead, partial and gendered, which necessitated challenging conventional research practices as well as radically reviewing many of the taken-for-granted assumptions about the nature of social science,” leading to the emergence of feminist critique. 1. 2 Research methodology:
The researcher has adopted the doctrinal method of research as it was found to be most suitable for this type of project. Doctrinal method is the method of obtaining information from primary and secondary sources. Resources from the NALSAR library and the Internet were used. The sources used for this project are secondary in nature. The aim of this project is to understand feminism as a legal theory with emphasis on its quality of providing critique of existing legal forms. 1. 3 Research plan: The Researcher has addressed the various facets of the subject under different headings marked by numbers.
The first Heading gives a brief introduction to the concept of Feminism. The subsequent headings cover the different facets relating to feminist jurisprudence and critical analysis, including critical legal studies and critical race theory. The research ends with the conclusion and bibliography. 1. 3. 1 Aims and Objectives: Through this project the researcher aims to provide the reader with an overview of feminist legal theory and the critique it provides, with mention of cases. The researcher has carefully scrutinized the mentioned topic and given a brief study on the same.
The researcher has judicial precedents and examples for the same. 1. 3. 2 Scope and Limitations: Within the scope of this project the researcher will discuss the topic along with mention of important cases on the same. Due to paucity of space and time to some extent, the researcher will be unable to include all the facets and will limit herself to analyzing and discussing only the relevant and most striking aspects relating to the topic. 1. 3. 3 Formatting and footnoting style: The researcher has followed the formatting style as given by Dr. Vijender Kumar, Professor of Law, NALSAR, University of Law.
The footnoting format is: Title and first name of author, Last name of author, Name of the book, edition of the book/ reprint (year), page number. CHAPTER 1 FEMINIST LEGAL THEORY Feminism analyses the patriarchal origin, nature, and effects of human attitudes, concepts, relations, and institutions and criticizes them on that ground. Heidi Hartmann, in The Family as the Locus of Gender, Class, and Political Struggle: The Example of Housework (1981), states, “Patriarchy is not simply hierarchical organisation, but hierarchy in which particular people fill particular places.
It is in studying patriarchy that we learn why it is women who are dominated and how. ” So one might take as a reasonable working definition that “feminist jurisprudence is the analysis and critique of law as a patriarchal institution. ” This is derived from the core aspect of the social construction of gender, which is that culture and law assign women responsibility for the socially and economically necessary work of nurturing, childrearing, managing household consumption, and providing domestic labour. The state and law institutionalise male power by mystifying the division between public and private life as one of ‘natural’ sexual difference, enforcing the separation of public and private life and with it the distinctness of male and female existence. ” This view is enforced by Susan Atkins and Brenda Hoggett, authors of Women and the Law (1984), who argue that “the law is written and interpreted from a male point of view based on male experiences of reality. ” In India, most Hindu law subscribes to a patriarchal approach. This was observed in the case of Githa Hariharan v.
Reserve Bank of India , which challenged Section 6(a) of the Hindu Minorities and Guardianship Act, 1956 for giving precedence to the father, even if he remained indifferent, over the mother in guardianship of the child. On analysis, this view was found to be discriminatory and it was held that the mother would be the guardian, even in the lifetime of the father, if the father was unaffected by the child’s affairs. Even American cases reflect the extent to which the patriarchal society had influenced the laws in their discrimination against women. In 1875 and 1961, the cases of Minor v.
Hapersett and Hoyt v. Florida respectively held that a State law denying women the vote and the State practice of systematically excluding women from (state) jury service were constitutional. These ultimately had to be rectified by the ruling in Taylor v. Louisiana and the 19th Amendment of the American Constitution. Feminist legal theory has 3 principal stands, which are the ‘difference’, ‘different voice’ and ‘dominance’ approaches. The ‘difference’ approach argues that women should be allowed to compete with men on equal terms with men in the public world.
The ‘different voice’ strand of feminist theory asserts that there is a distinctly female way of approaching moral and legal dilemmas and that that way has been ignored or downplayed in legal doctrine and scholarship. It is complemented by the cultural approach to feminism that was discussed earlier. The third approach- ‘dominance’- describes gender inequality not in terms of arbitrary or irrational differentiation but in terms of the social subordination of women. The dominance theory was used by Catherine MacKinnon to criticise the Court’s decision to treat Roe v.
Wade as a case regarding only privacy rather than equality. It has led to the recognition of battery and rape, which were once seen as private and aberrational, as a part of a broad-scale system of domination that affects women as a class. Feminist legal theory does not merely restrict itself to laws that have an overt impact on women but on all spheres of law, as all are equally pertinent. “The critique of existing theory is based upon the disjuncture of women’s lived experience of reality and men’s representations of it. Each of these approaches is concerned with digging beneath the surface of legal and social arrangements so as to illuminate their deeper logic. Feminism poses certain distinctive theoretical questions of law: “what happens when women are included; how does law construct the female subject in language; how can law be changed better to reflect women’s interests and experience? ” CHAPTER 2 FEMINIST CRITICAL THEORY The main concern of feminist jurisprudence is “the treatment of women by the legal system and the lack of perception of women’s experiences and needs in law. Thus, one of the pillars of feminist legal theory is that society and, necessarily, legal order, is essentially patriarchal. Within this are critical feminist theories, which retain a commitment to “locate judgment within the patterns of social practice, to subject that judgment to continuing critique, and to promote gender equality as a normative ideal. ” In fact, “Feminist legal theorists belong to a norm-forming group involved in the creation of new legal meanings. ” The application of such thought leads to triumphs such as the case of Reed v.
Reed , one of the first cases to have taken the side of the feminists in declaring the unconstitutionality of a provision that gave preference to men over women when persons of the same entitlement class apply for appointment as administrator of a decedent’s estate. When it comes to the analysis of rights, two different approaches are recognised- the normative and the analytical. “The normative approach seeks to establish a justification for the acceptance of a particular set of substantive rights, while the analytical approach seeks to establish the logical form or necessary features of rights. Feminist critical theorists, in also examining a wide range of exclusions and inclusions in the global system, transcend from the normative into the analytical since such critical approaches seek to understand how social systems marginalize and exclude certain groups . Critical feminism also draws from pragmatic philosophical traditions in that it is grounded in practical problems and relies on practical reasoning. “Critical pragmatism is a methodological orientation that believes that social science research should illuminate ideological domination, hegemonic practices, and social injustice. Moreover, with the influence of the dominance theory, Feminist critical scholars paradigmatically realise that we need to “explore and expose not only the ways in which legal institutions oppress us through threats of force, but also in the ways those institutions to which we tender our freely given consent might also be harming us”, such as participation in the creation and distribution of pornography or a surrogacy contract and feminist critical theory offers a detailed examination of the harms these consensual transactions sometimes cause.
A prominent example given by the dominance theorists themselves is that of marital rape, which was often misconstrued as being consensual owing to the concept of spouses’ conjugal rights. Such a viewpoint was finally overruled in the case of R v. R, which still received criticism from many quarters. CHAPTER 3 FEMINIST JURISPRUDENCE AND CRITICAL LEGAL THEORIES Feminist method shares certain conceptual tools with Marxist theory, critical legal theory and critical race theory.
This chapter will deal with the parallels between feminism and the latter two theories. 3. 1. Critical Legal Studies (CLS) The connection shared by feminist jurisprudence and critical legal studies goes so far back as to see the former as an off-shoot of the latter, as many feminist legal theorists subscribe to the early principles of the CLS movement of the 1970s. According to Critical Legal Studies (CLS), “law does not have an existence outside of the battles within society. This bears a resemblance to the feminist insistence on a convergence of the public and the private. Further similarities between the approaches of feminist jurisprudence and CLS include the “condemnation of injustice, scepticism as to the alleged neutrality of law, the purported separation of law from politics and the role that law had played in conferring legitimacy on a society’s existing institutions and social ordering. The point of CLS is to note a scheme that is radical and transformative in many ways by severely condemning the behaviour of higher-status men, by questioning the generalisation of the use of authority to gain personal power and deference, which again brings to mind the advantage men in the patriarchal society have in the legal sphere- the main concern of feminists. Feminism is motivated by the dissatisfactions of a wide spectrum of both academic and non-academic women and by the everyday experience of such women and CLS, while it seeks to explore the interrelationship between theory and political practice, is a movement whose impetus springs from the dissatisfaction of legal academics. ” Both movements are revolutionary in that they seek to bring about change. However, “feminism takes gender as a central category of analysis, while the core texts of CLS do not.
Many of these texts might make at least some reference to problems of sex-based subordination and to the existence of feminist scholarship, yet most critical legal theory and the traditions on which it relies have not seriously focused on gender inequality. ” The intersection of the two can be observed in cases such as Sakshi v. Union of India, a popular case dealing with rights of children. It is a classic example of how mutable the law might become in the hands of the dominant group, as the children are a section of society with no legal powers, and, with inquiry, how their rights might be protected. . 2. Critical Race Theory Feminist analysis begins with the principle that objective reality is a myth and that knowledge which claims to be neutral is a projection of the male psyche. It seeks to analyse the contribution of law in constructing, maintaining, reinforcing and perpetuating patriarchy and it looks at ways in which this patriarchy can be undermined and ultimately eliminated. They argue that legal language and reasoning are gendered: they are informed by men’s experiences and derive from the powerful social position of men, relative to women.
Olsen emphasises the dualistic and polarised nature of this thinking, and stresses that the “law’s cognition of women is refracted through the male eye rather than through women’s experiences and definitions. ” This corresponds with the view of Critical Race Theory that the law is a construct of the dominant race and is often ‘colour-blind’. “Critical Race Theorists reject the liberal conceptualisation of race as a natural category, understanding race instead to be constituted through a social process of attribution of meaning in which law has played a central role. This again is identical to the radical feminists’ view that gender is not a natural category, or, in the words of Simone de Beauvoir: “One is not born a woman, but becomes one” (The Second Sex, 1949). 3. 2. 1. Critical Race Feminism The similarities in the beliefs and aims of both the critical race theory and that of feminist jurisprudence in two different spheres led to the convergence of the two into Critical Race Feminism, which is fundamentally an anti-essentialist stance. Essentialism is the notion that there is a monolithic ‘women’s experience’ that can be described independently of other facets such as race, class and sexual orientation” is presumed by most feminist theory. Critical race feminists are thus anti-essentialists and the intersection of feminism and the storytelling method of the Critical Race Theory emphasises theoretical and practical considerations of class, race and gender by placing these factors at the centre of analysis. An illustration pertaining to this theory is the case of Chambers v. Omaha Girls Club.
In this case, a pregnant woman of colour, Carol Chambers, was fired from her post as instructor in the Girls Club. The reason given for this was that she would be a bad role model for the young girls who were part of the club, owing to the fact that she was unmarried and pregnant. The critique offered of this argument is that it is equally likely that the club sacked her in part because she resisted its effort to model her in conformity with white and middle-class morality, which is a typically Critical Race Feminist viewpoint. CONCLUSION In addressing a topic such as this, the question of ‘What constitutes the critical? requires to be answered, ideally at the very initial stages. It is observed that “to the extent that any theorisation of societal mechanisms and modes of conducting social relations does not accord with the dominant ways of viewing society and social relations, it may be said to be critical” and feminist legal theory, in questioning the dominant ways of viewing society itself becomes a method of critical analysis. Feminist analysis is grounded in four basic tenets: (i) addressing the public/private divide; (ii) patriarchy; (iii) sex and gender; and (iv) equality and difference.
While patriarchy and sex and gender are exclusive to the feminist theory, the remaining two concepts are observed in CLS as well as Critical Race Theory. For example, “society distinguished the family from the sphere of law because the home is the ‘private’ sphere, so the norm was laissez-faire. ” But this has been criticised by both Catherine MacKinnnon and Andrea Dworkin, who have made parallel points about the assumption that family life is non-coercive because it is private and, as has already been discussed, the political is not seen as separate by CLS theorists as well.
Also, the question of equality and difference has also led to both Critical Race Theorists as well as feminists setting the status of being ‘separate, but equal’ as the norm. Thus, not only does feminist jurisprudence address the same questions raised by other prominent critical theories, it also aims at critically studying the mismatch between women’s experiences and the structures imposed by law, the assumptions made by it and also of the patriarchal nature of society and the role played by it. BIBLOGRAPHY: BOOK SOURCES: Andrew Heywood, POLITICAL IDEOLOGIES: AN INTRODUCTION, 3rd ed. 003, Palgrave Macmillan, London N. K. Jayakumar, LECTURES IN JURISPRUDENCE, 2nd ed. 2006, LexisNexis, New Delhi Gary Minda, POSTMODERN LEGAL MOVEMENTS, 1995, New York Univesity Press, New York Michael S. Lewis-Beck, et al. , THE SAGE ENCYCLOPAEDIA OF RESEARCH METHODS, 2004, SAGE Publications, California Jonathan Michie, (ed. ), ENCYCLOPAEDIA OF SOCIAL SCIENCES, 1st ed. 2001, Fitzroy Dearborn Publishers, London Patricia Smith, (ed. ), FEMINIST JURISPRUDENCE, 1st ed. 1993, Oxford University Press, New York Sylvia A. , EQUALITY: THE POWER AND LIMITS OF THE LAW, Stephen B.
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