Introduction to Feminist

Jurisprudence
Feminist jurisprudence is a philosophy of law based on the
political, economic, and social equality of sexes. As a field of
legal scholarship, feminist jurisprudence began in 1960s. It now
holds a significant place in U.S. law and legal thought and
influences many debates on sexual and domestic violence,
inequality in the workplace, and gender based discrimination.
Through various approaches, feminists have identified gendered
components and gendered implications of seemingly neutral
laws and practices. Laws affecting employment, divorce,
reproductive rights, rape, domestic violence, and sexual
harassment have all benefited from the analysis and insight of
feminist jurisprudence.
Feminist jurisprudence is a
burgeoning school of legal thought that encompasses many
theories and approaches to law and legal issues. Each strain of
feminist jurisprudence evaluates and critiques the law by
examining the relationship between gender, sexuality, power,
individual rights, and the judicial system as a whole. As a field
of legal scholarship and theory, feminist Jurisprudence had its
beginnings in the 1960s. By the 1990s it had become an
important and vital part of the law, informing many debates on
sexual and Domestic Violence, inequality in the workplace, and
gender-based discrimination at all levels of Indian society.
Feminist jurisprudence intersects with a number of other forms
of critical theories, most notably critical race theory and the
study of intra and inter-racial relationships. Moreover, the form
of feminist thought that focuses on legal theory draws from
feminism in other disciplines, including sociology, political
science, history, and literature. Leaders in the feminist
jurisprudence camps thus do not focus exclusively upon purely
legal aspects of feminism.
Feminist activist were ardent supporters of women rights and
reservations. They actively challenged male superiority in the
workplace. Their efforts paid off and female co-workers and
employees started getting better pays and positions.
Feminists also criticize mainstream jurisprudence as patriarchal.
They say that male-dominated legal doctrine defines and
protects men, not women. By discounting gender differences,
the prevailing conceptions of law perpetuate patriarchal power.
Because men have most of the social, economic, and political
power, they use the system to subordinate women in the public
spheres of politics and economics as well as in the private
spheres of family and sex. The language, logic, and structure of
the law are male created, which reinforces male values. Most
troubling, these concepts and values are presented as and are
widely perceived to be both neutral and objective.
In analyzing the workings of gender in the law, feminist
scholars share certain common commitments. Politically, they
seek equality between men and women. Analytically, they make
gender a category by which to reconstitute legal practices that
have excluded women's interests. Methodologically, they use
women's experiences to describe the world and to demonstrate
the need for change. They rely primarily on an experiential
discourse for analyzing gender hierarchy, sexual objectification,
and social structures
RISE OF FEMINIST JURISPRUDENCE

Feminist jurisprudence represents the diversity of feminist

philosophy and theory. Notwithstanding differences in
approaches, all feminists share the belief that "women are
oppressed or disadvantaged in comparison with men and that
their oppression is in some way illegitimate or unjustified.
Under the umbrella of this general characterization there are,
however, many interpretations of women and their oppression,
so that it is a mistake to think of feminism as a single
philosophical doctrine. Just as there are diverse images of
liberation, so there are a number of feminist philosophies,
yoked together not so much by their particular claims or
prescriptions as by their interest in a common theme.

Feminist activism has had a major impact, besides other fields,

on many areas of law. Legal feminism which originated as
distinct category only in second half of this century now enjoys
a formidable presence in feminist movement worldwide.

The liberal feminism also labeled as first wave feminism was

based on emancipatory theory and sought to dismantle the
positive legal barriers that had denied women equal opportunity
with men. This strand of thought supports the values of liberal
jurisprudence as imputed to law, but identified a discrepancy
between those liberal values and legal practice, such that
women are accorded parity with men. The theory behind those
goals was that the rights of individuals as traditionally
understood in a liberal society should transcend gender
differences. If follows that law must be persuaded to apply
these standards more rigorously in case of women or that liberal
values must be revised to recognise gender as a source of social
injustice. The main objective is to give women genuine, as
 opposed to nominal, equal rights or, where their special social
situation demands it, special rights.

After this theory emerged illiberal feminist legal theory, also known as
"radical feminism", during 1980s. It urges women to renounce
traditional notions of right and justice, now viewed as perpetuating male
dominance. Some of the radical feminists charge that the reforms
achieved by "equality feminists" have dismantled protections beneficial
to women while doing nothing to eliminate their disadvantages. They
too note the discrepancy between the liberal values imputed to law and
law's treatment of women but recognises the limitations of attempting to
close the gap between liberal jurisprudence and legal practice either by
making law apply legal principles more scrupulously in the area of
gender or by revising liberal principles.

For radical feminists, the key concept is "patriarchy", the male

dominated social structure. They argue that liberal
jurisprudence can make no impact on law's treatment of women
so long as categories, such as crime or family law, and legal
concepts such as provocation or marriage, embody male norms
and accordingly fail to address women's experiences. It follows
that such legal categories and concepts must be transformed to
address women's social position and experiences. They attack
the liberal principles as neutrality of law, equality and
individual autonomy for their "patriarchal" roots. Mackinon, a
main protagonist of this stream asserts, "the greater the prima
facie neutrality of law, the more effectively 'neutrality' works as
a key mechanism for masking the male domination for example
by requiring women to fit into an economic system which
denies them substantive equality." Law is seen as an instrument
to "change the distribution of power", which requires not equal
treatment but "an asymmetrical approach that adopts the
perspective of the less powerful group with the specific goal of
equitable power sharing among diverse groups".
Thus the latest trend can be summarized as questioning the
desirability of gender equality as a feminist goals as well as
capacity of law reform to achieve that goal.
Feminism has no theory of the state. It has a theory
of power: sexuality is gendered as gender is
sexualized. Male and female are created through
the erotization of dominance and submission.
The man/woman difference and the
dominance/submission dynamic deine each other.
This is the social meaning of sex and the
distinctively feminist account of gender
inequality. Sexual objectification, the central
process within this dynamic, is at once
epistemological and political. The feminist theory
of knowledge is inextricable from the feminist
critique of power because the male point of view
forces itself upon the world as its way of
apprehending it.

Feminism criticizes this male totality without an account of

our capacity to do so or to imagine or realize a more
whole truth. Feminism afirms women's point of view by
revealing, criticizing, and explaining its impossibility. This
is not a dialectical paradox. It is a methodological
expression of women's situation, in which the struggle for
consciousness is a struggle for world: for a sexuality, a
history, a culture, a community, a form of power, an
experience of the sacred. If women had conscious¬ ness or
world, sex inequality would be harmless, or all women
would be feminist. Yet we have something of both, or
there would be no such thing as feminism. Why can
women know that this—life as we have known it—is not
all, not enough, not ours, not just? Now, why don't all
women?

The practice of a politics of all women in the face of its

theoretical impossibility is creating a new process of
theorizing and a new form of theory. Although feminism
emerges from women's particular experience, it is not
subjective or partial, for no interior ground and few if any
aspects of life are free of male power. Nor is feminism
objective, abstract, or universal. It claims no external
ground or unsexed sphere of generalization or abstraction
beyond male power, nor transcendence of the speciicity
of each of its manifestations. How is it possible to have
an engaged truth that does not simply reiterate its
determinations? Disengaged truth only reiterates its
determinations. Choice of method is choice of
determinants—a choice which, for women as such, has
been unavailable because of the subordination of women.
Feminism does not begin with the premise that it is
unpremised. It does not aspire to persuade an unpremised
audience because there is no such audience. Its project is
to uncover and claim as valid the experience of women,
the major content of which is the devalidation of women's
experience.
Feminism has been widely thought to contain tendencies
of liberal feminism, radical feminism, and socialist
feminism. But just as socialist feminism has often
amounted to marxism applied to women, liberal
feminism has often amounted to liberalism applied to
women. Radical feminism is feminism. Radical
feminism—after this, feminism unmodiied—is
methodologically post-marxist.8 It moves to resolve the
marxist-feminist problematic on the level of method.
Because its method emerges from the concrete conditions
of all women as a sex, it dissolves the individualist,
naturalist, idealist, moralist structure of liberalism, the
politics of which science is the epistemology. Where liberal
feminism sees sexism primarily as an illusion or myth to
be dispelled, an inaccuracy to be corrected, true feminism
sees the male point of view as fundamental to the male
power to create the world in its own image, the image of
its desires, not just as its delusory end product.
Feminism distinctively as such comprehends that what
counts as truth is produced in the interest of those with
power to shape reality, and that this process is as pervasive
as it is necessary as it is changeable. Unlike the scientiic
strain in marxism or the Kantian imperative in liberalism,
which in this context share most salient features,
feminism neither claims universality nor, failing that,
reduces to relativity. It does not seek a generality that
subsumes its particulars or an abstract theory or a
science of sexism. It rejects the approach of control
over nature (including us) analogized to control over
society (also including us) which has grounded the
"science of society" project as the paradigm for political
knowledge since (at least) Descartes. Both liberalism and
marxism have been subversive on women's behalf.
Neither is enough. To grasp the inadequacies for
women of liberalism on one side and marxism on the
other is to begin to comprehend the role of the liberal
state and liberal legalism within a postmarxist feminism
of social transformation.

The feminist posture toward the state has therefore been

schizoid on issues central to women's survival: rape,
battery, pornography, prostitution, sexual harassment,
sex discrimination, abortion, the Equal Rights
Amendment, to name a few. Attempts to reform and
enforce rape laws, for example, have tended to build on
the model of the deviant perpetrator and the violent act, as
if the fact that rape is a crime means that the society is
against it, so law enforcement would reduce or de-
legitimize it. Initiatives are accordingly directed toward
making the police more sensitive, prosecutors more
responsive, judges more receptive, and the law, in words,
less sexist. This may be progressive in the liberal or the left
senses, but how is it empowering in the feminist sense?
Even if it were effective in jailing men who do little
different from what nondeviant men do regularly, how
would such an approach alter women's rapability?
Unconfronted are why women are raped and the role of
the state in that. Similarly, applying laws against battery
to husbands, although it can mean life itself, has largely
failed to address, as part of the strategy for state
intervention, the conditions that produce men who
systematically express themselves violently toward
women, women whose resistance is disabled, and the
role of the state in this dynamic. Criminal enforcement
in these areas, while suggesting that rape and battery are
deviant, punishes men for expressing the images of
masculinity that mean their identity, for which they are
otherwise trained, elevated, venerated, and paid. These
men must be stopped. But how does that change them or
reduce the chances that there will be more like them?
Liberal strategies entrust women to the state. Left theory
abandons us to the rapists and batterers. The question
for feminism is not only whether there is a meaningful
difference between the two, but whether either is
adequate to the feminist critique of rape and battery as
systemic and to the role of the state and the law within that
system.
Feminism has descriptions of the state's treatment of
the gender difference, but no analysis of the state as
gender hierarchy. We need to know. What, in gender
terms, are the state's norms of accountability, sources of
power, real constituency? Is the state to some degree
autonomous of the interests of men or an integral
expression of them? Does the state embody and serve male
interests in its form, dynamics, relation to society, and
specific policies? Is the state constructed upon the
subordination of women? If so, how does male power
become state power?

Responding to Liberalism: Questions of Perspective

As a critical theory, feminist jurisprudence responds to the

current dominant understanding of legal thought, which is
usually identified with the liberal Anglo-American tradition.
(This tradition is represented by such authors as Hart 1961 and
Dworkin 1977, 1986.) Two major branches of this tradition
have been legal positivism, on the one hand, and natural law
theory on the other. Feminist jurisprudence responds to both
these branches of the American legal tradition by raising
questions regarding their assumptions about the law, including:
that law is properly objective and thus must have recourse to
objective rules or understandings at some level
that law is properly impartial, especially in that it is not to be
tainted by the personal experience of any of its practitioners,
particularly judges
that equality must function as a formal notion rather than a
substantive one, such that in the eyes of the law, difference
must be shown to be “relevant” in order to be admissible/visible
that law, when working properly, should be certain, and that the
goal of lawmaking and legal decision-making is to gain
certainty
that justice can be understood as a matter of procedures, such
that a proper following of procedures can be understood as
sufficient to rendering justice.
Each of these assumptions, although contested and debated, has
remained a significant feature of the liberal tradition of legal
understanding.
Feminist jurisprudence usually frames its responses to
traditional legal thought in terms of whether or not the critic is
maintaining some commitment to the tradition or some
particular feature of it. This split in responses has been
formulated in a number of different ways, according to the
particular concerns they emphasize. The two formulations
found most frequently in American feminist jurisprudence
characterize the split either as the reformist/radical debate or as
the sameness/difference debate. Within the reformist/radical
debate, reformist feminists argue that the liberal tradition offers
much that can be shaped to fit feminist hands and should be
retained for all that it offers. These feminists approach
jurisprudence with an eye to what needs to be changed within
the system that already exists. Their work, then, is to gain entry
into that system and use its own tools to construct a legal
system which prevents the inequities of patriarchy from
affecting justice.
Under the sameness/difference debate, the central concern for
feminists is to understand the role of difference and how
women’s needs must be figured before the law. Sameness
feminists argue that to emphasize the differences between men
and women is to weaken women’s abilities to gain access to the
rights and protections that men have enjoyed. Their concern is
that it is women’s difference that has been used to keep women
from enjoying a legal status equal to men’s. Consequently, they
see difference as a concept that must be de-emphasized.
Sameness feminists work to highlight the ways in which women
can be seen as the same as men, entitled to the same rights,
protections, and privileges.
2. Central Concerns: Questions of Theory and Practice
In asking theoretical questions, feminists are concerned with
how to understand the law itself, its proper scope, legitimacy,
and meaning. Many of these are the questions of traditional
legal theory, but asked in the context of the feminist project:
What is the proper moral foundation of the law, especially
given that any answer depends on the moral principles of the
dominant structure of the society? What is the meaning of rule
of law, especially given that obedience to law has been an
important part of the history of subjugation? What is the
meaning of equality, especially in a world of diversity? What is
the meaning of harm, especially in a world in which women,
not men, are subjected by men to certain kinds of violence?
How can adjudication of conflict be properly and fairly
achieved, especially when not all persons are able to come to
the adjudication process on a “level playing field”? What is the
meaning of property, and how can women avoid being
categorized as property? Is law the best and most appropriate
channel for the resolution of conflict, especially given its
traditional grounding in patriarchal goals and structures?
Although feminists have addressed all these questions and
more, perhaps one issue stands out in many feminists’ eyes as a
matter of special importance, encompassing as it does some
aspect of many of the questions noted above. The issue that for
many feminists is at the heart of concerns is that of equality and
rights. Two others that may be considered nearly as central are
problems of harm, and of the processes of adjudication.
a. Equality and Rights
Law works partly by drawing abstract guiding principles out of
the specifics of the cases it adjudicates. On this abstract level,
theoretical questions arise for feminist jurisprudence regarding
equality and rights, including the following: what understanding
of equality will make it possible for women to have control over
their lives, in both the private and public spheres? What
understanding of equality will provide an adequate grounding
for the concept of rights, such that women’s rights can protect
both their individual liberty and their identity as women?
Examinations of equality are, therefore, often framed by
particular substantive issues. For example, much feminist
jurisprudence regarding equality is framed in terms of concerns
about work. If women are equal, then how will this be
expressed in workplace law and policy? One of the key issues
in this field has been how to treat pregnancy in the workplace:
Is it fair for women to have extended or paid leave for
pregnancy and birthing? Under what circumstances, or
limitations? Are women being given “special” rights if they
have a right to such leave? The struggle over the proper
understanding of pregnancy and work raises questions about
whether women should be treated in such law as individuals or
as a class. As individuals, it has seemed relatively easy for
workplaces to claim that not all employees are given such leave,
and thus that women who do not are being treated “equally”.
One feminist strategy has been to attempt to revise such law to
recognize the particular difference of women as a class. Herma
Hill Kay, for example, argues that pregnancy can be seen as an
episode which affects women’s ability to take advantage of
opportunities in the workplace, and that pregnant workers must
be protected against loss of equal opportunity during episodes
of pregnancy.
b. Understanding Harm
Perhaps the most difficult question for feminist jurisprudence
regarding the issue of harm is that of perspective: who defines
and identifies harm in specific cases? Given that law has
traditionally worked from a patriarchal perspective, it is perhaps
not surprising that identifying harm to women has been
problematic. A patriarchal system will benefit from a very
stingy recognition of harms against women. Feminist
jurisprudence, therefore, must examine the basic question, what
is harm? It also must ask, what counts as harm in our legal
system, and why? What has been excluded from definitions of
harm that women need included, and how can such trends be
overturned?
c. The Processes of Adjudication
Many feminist jurists challenge the processes of adjudication by
raising questions about the neutrality or impartiality that such
processes are assumed to embody. Neutrality is believed to
function in the law in at least two ways. It is assumed to be built
into the processes of the law, and it is assumed to be produced
by those processes. Feminist jurisprudence challenges the first
set of assumptions by raising questions about legal reasoning. It
challenges the second by raising questions about how a law
created and applied by partial and biased persons can itself be
neutral. Thus feminist jurisprudence also raises the question of
whether neutrality is a possible, or an appropriate, goal of the
law.
.
FEMINIST JURISPRUDENCE IN INDIA
Feminist Jurisprudence or legal feminism in India can be said to
have emerged as a distinct category of feminist movement in
late seventies as a reaction towards some of the overtly biased
judicial decisions. Before that the origination of women's
movement can be traced back to the period of subservient status
under colonial rule. Like elsewhere in world, movement had
focused on the reform of women's social position and in India it
was especially aimed at eradicating some of the traditional but
evil practices like 'Sati', 'Devdasi' system, child marriage,
seclusion of widows etc.

These reforms under colonial rule were sought through recourse

to law since attempts were made to root out the practices
against conventional and deep rooted beliefs of the society.
Next major attempt for reforms came through immediately after
independence, where in Government made considerable and
revolutionary reforms in laws relating to Hindus towards
improving the status of women although, these measures were
required in the laws of every religious community. The Hindu
society was experiencing many social reformist which helped
the government to modify and reform Hindu law while due to
many other considerations personal laws of minority
communities were left undisturbed. Thus in both instances Law,
which is an important institution in most contemporary societies
was used as a tool for social reform. Now, more than five
decades after independence, at the turn of 21st century, when
role and efficacy of law in empowerment of women and in
social change in general is questioned, law is still considered
and used as one of the important mechanisms to uphold and
support the cause of women in India.

The new feminist theory advocates for looking beyond goals of

gender equality and related rights. Feminist analyses of law
usually take the form of pointing out that laws as enacted and
implemented by state agencies are biased against women and
are in favour of men. It is also claimed that the creation of a
'new corpus' of rights for women ignores the ideological power
of law to mask social reality and obstruct social change. In view
of the demonstrated ineffectiveness of legal rights in ending
oppression of women, some western feminists and legal
scholars are now abandoning rights based claim altogether.
There exists a considerable literature documenting how law
upholds the division between the public and private spheres and
is thus disadvantageous to women. The liberal feminist efforts
to make the state responsible for welfare services like child care
and health care as means of ensuring substantive equality to
women, attract the charge that these measure will strengthen the
hold of the state on women. The argument, briefly, is that
formal legal intervention by the state in the personal life of
people weakens the family bonds and makes individuals more
susceptible to state control.

Considering all these contentions it can be said that there is no

consensus about what needs to be done. All the above kind of
discussions tend to make the whole debate regarding women's
oppression very abstract and theoretical , taking it far away
from reality, especially in Indian context. Feminist objections to
gender equality or negative role of law are not of much
relevance in India. Feminist authors who point to the drawbacks
of law reforms all live in societies in which women have
already gained formal equality. Their concerns have shifted
beyond law reforms and legal rights only after they had
virtually achieved legal equality with men. But the first wave
feminism had started everywhere demanding legal equality with
men. Just as first wave feminist could not contemplate kind of
demands made by second wave feminist, so in Indian context,
women who do not even have a parity of rights regarding
divorce, maintenance, custody, guardianship, inheritance and
like matters can not realistically be expected to make demands
for the autonomy to control their sexuality or the right to the
inviolability of their bodies. This almost equal legal status of
women in west permits them to focus on alternative strategies
for ending the oppression of women. They can afford to reject
law reform if it no longer yields sufficient gains.

In India, however, even after five decades of independence,

women still do not have equal legal rights. Most women often
do not have the option to step out of oppressive family
situations and therefore cannot afford to ignore law reform as
one of the strategies in their struggle against oppression.
Performing their role, women do bear child but a large number
of them have no choice regarding how many and when.
Concern for a women coming from modernized western nation
may be, "my son would grow up and perpetuate patriarchy" but
for a woman in India, concern is "what if she is not able to bear
a male child" or " how can she keep her female child alive?".

Thus, still largely under first wave of feminism, legal equality is

the major concern. Law can not be rejected as a tool of reform
in spite of its limitations. Nevertheless it is important to note
that while reality for women in India is much different from that
of west the demands like those made by second wave feminists
are not altogether absent. Demands for rejecting traditional
norms of femininity and sexuality, claims for inviolability of the
body for every woman, change in legal concepts and legal
categories to deal with problems specific to women have also
gained ground. The fact that women are trying to eke out
balance between the forces of modernization and traditional
values adds to the peculiarity of the situation, as India,
especially the urban areas are largely under the influence of
both kinds of so called waves of feminisms, where law as a
social reformer can neither be accepted nor rejected in its
totality.
CONCLUSION:

Throughout the study it has emerged that somehow this status continues and various laws
contribute to this paradox. Every time the law, which is very often alleged to be an oppressor
has come to the rescue of women, was seen to be favouring them it has done so half heartedly.
The state, the governing bodies, the polity have extensively used the inherent flexibility of legal
system in their vested interests. Women empowerment has always been professed as an
objective of government during various modifications and amendments in law, but given the
deeply entrenched patriarchal system, they could never be achieved up to the desirable levels.
The law reformers had to tread a fine line in giving women better rights but not seeming to take
away any of the privileges of men. In Indian context this patriarchy is further shaped by an
additional but the most important element, Religion.

Religion, which defines the lives of people in India, and is supposed to give meaningful ways of
life has been used since a long as an instrument to oppress women. In this study, the
dichotomous behaviour of state is well exemplified by analysis of the laws relating to marriage,
divorce, adoption, guardianship inheritance and maintenance. In each of these laws, not only
women are disadvantaged again men, but there exists extreme discrimination between women
of different communities, and again it is religion and respect of religious freedom which are
used as insidious excuses for tolerating such discrepancies. It is true that every state is
composed of hierarchy of interests and every time while giving priority to one, other interests
have to be subordinated. Probably, that can be accepted as valid justification by a state in post
partition independent India for extending equality, though only partial, to Hindu women, and
deciding to do nothing for women of minority communities, but the disturbing realisation is that
in a long period of more than fifty years after independence, women could never assume
priority in hierarchy of interests.

This gives rise to an important question if the government regulated by political and religious
considerations, can be relied upon for further positive action. Inspite of all the negative points in
Indian situation, State and law are the most important sites for struggle. This is further
substantiated by the fact that even in case of reforms for Hindu women, besides the state's own
zeal to appear progressive, it had to concede to the pressure of reformers, activists and women's
movements. This intensifying crusade for women's cause have also been successful in extorting
out some more important concessions from the state for empowerment of women. Inclusion of
special categories of crime against women like 'dowry deaths' and 'custodial rape' are some of
the encouraging example. On the same lines are 73rd and 74th amendments in the constitution,
which have set an unique example by providing governance rights to women at local level both
in rural and urban area. Furthermore, it is to be remembered that every society is composed of
hierarchy of normative values and in this there are people (though miniscule) at the top of
hierarchy, at some stage, who transcend their times and are critically aware of oppressiveness of
certain values, which their society professes, adores and suffers in. Such people themselves
being conscientising agents can act as conscientizing multiplier to generate sensitivity in the
society. It is heartening to realise that Indian society is not completely devoid of such agents.
Indian judiciary presents a strong example of the same. Series of decisions in case of 'Pratibha
Rani,' 'Sarla Mudgal,' 'Geeta Hariharan', 'Vishaka', 'Shah Bano', 'Mary Zaharias' which have
been cited in this study are only a very few examples exhibiting the sagacity and sensitivity of
the judiciary, which gives the women all the reasons to keep the optimism and struggle thriving.

It may thus be concluded that isolated but numerous efforts have been effective in shaping
feminist jurisprudence in India. It has gained a foothold in the country and is passing through a
transitional phase. It is zealously combating retrogressive fundamentalist forces with its inner
strength supported by international community. There is a courage of conviction and immense
potential which is finding increasing support at all levels. the time is not very far when the
discipline will be institutionalised not only in the educational system but also in the political,
social and economic systems of the country and the world may see India emerge as a major
force in the global community to support the cause of feminist jurisprudence.
Table of contents:

i. Introduction
ii. Rise of feminist jurisprudence
iii. Responding to liberalism: Questions of perspective
iv. Feminist jurisprudence in India
v. Conclusion