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FEMINIST LEGAL THEORY

• Introduction
• Feminism is the belief in the social, economic, and political equality of the
sexes, largely originating in the West, feminism is manifested worldwide and
is represented by various institutions committed to activity on behalf
of women's rights and interests.
• Throughout most of Western history, women were confined to the domestic
sphere, while public life was reserved for men.
• In medieval Europe, women were denied the right to own property, to study,
or to participate in public life.
• At the end of the 19th century in France, they were still compelled to cover
their heads in public, and, in parts of Germany, a husband still had the right
to sell his wife.
• Even as late as the early 20th century, women in the United States, as in
Europe, could neither vote nor hold elective office.
• Women were prevented from conducting business without a male
representative, be it father, brother, husband, legal agent, or even son.
• Married women could not exercise control over their own children without
the permission of their husbands. Moreover, women had little or no access
to education and were barred from most professions.
• In some parts of the world, such restrictions on women continue today.
• FEMINIST LEGAL THEORY
• Feminist analyses have offered important critiques in a variety of contexts:
from political, cultural theories to academic disciplines.
• The feminist legal theory is the analysis of the legal system which reflects
and reinforces a male perspective and the analysis of how women's
differences from men should or should not be reflected in legal rules, legal
institutions. and legal education.
• Patricia Smith argued that feminist legal theories opposes the patriarchal
(male) ideas that dominate society in general and the legal system in
particular.
• The differences among feminist legal theorists are seen on the different
perspectives in describing the many aspects and effects of patriarchy,
namely, differences in which problems to focus upon, and differences in
strategy for overcoming the problem of patriarchy (for example, those who
believe in moderate reforms as against those who believe that only radical
restructuring of society will suffice).
• Also what is common to feminist legal theories is that there are divergent
responses to the socially constructed differences between men and women,
responses regarding what these differences in terms of legal definition and
interpretation:
• One feminist response to the difference is:
• (1) there are intrinsic differences between men and women;
• (2) society and law are organised around a male standard and norm, a
situation which works in the short-term and the long--term against the
interests of women; and
• (3) society and law should be reformed to remove that bias, and to reflect
women's experiences as well as men's.
• The differences between men and women which are emphasized include
differences in values, ways of seeing the world, responding to other people,
responding to problems, ways of speaking, and etc.
• This view has been associated generally with the work of Carol Gilligan and
Robin West within legal theory.
• Another feminist response to difference is that differences appear
among men and women are marginal because of social or cultural
forces.
• Another feminist, Catharine MacKinnon argues that most of the
differences between men and women are the result of the
domination and exploitation of women by men.
• For example, women were not allowed to work in high-status or
high-paying areas, but, over time, women adapted to these
restrictions by, among other things, arguing for the value of what they
were allowed to do (e.g. the value of the care-giving professions, the
artistic value of quilts, etc.
• Women may be more likely to negotiate, rather than battle in
"winner takes all" contests, but that is because they have learned
that they would be likely to lose such contests, where society has
given all the power to men, and has encouraged the oppression of
women.
• Similarly, women may value caring and nurturing, but that is because
these are the values that society (that is, men) have valued in them.
Women are encouraged to be good mothers and nurses: they are
not encouraged to be good litigators and politicians.
• MacKinnon has criticised the way that an equality perspective tends to work
for the interests of men:
• "Why should anyone have to be like white men to get what they have, given
that white men do not have to be like anyone except each other to have it?"
• Feminist approaches and perspectives have been applied to a wide variety
of topics and issues.
• Among these are abortion rights, rape law, sexual harassment, surrogate
motherhood pregnancy and maternity leave, and pornography
• Though the arguments vary from from author to author, but the most
common theme is that the current law or current approach in these areas
exemplifies a male bias and/or works to the detriment of women as a group.
• For Catharine MacKinnon male domination and exploitation of women in
sexual matters is central to sexism and patriarchy.
• She wrote: "Pornography, in the feminist view, is a form of forced sex, a
practice of sexual politics, an institution of gender inequality"
• The argument is that the core of pornographic material is a portrayal of
women as subordinate to men, and women as enjoying their subordinate
position.
• Pornography thus has effects that raise issues separate from
the traditional view that it should be restricted because it is
"immoral" (immoral because sexually explicit).
• MacKinnon views that pornography works to silence women
by reinforcing the subordination of women and the
perception by men that women enjoy that subordination.
• MacKinnon drafted a model civil rights ordinance to offer
civil remedy for harms connected to sexually explicit
materials that display extreme sexual inequality.
• Under the ordinance, anyone who had suffered directly or
indirectly because of pornography could sue for damages.
• This model ordinance was proposed in a number of American
cities, passed in one, but a court declared it void on free
speech grounds (First Amendment, U.S Constitution).
• In the MacKinnon-Dworkin proposal, "pornography" was defined as the
"graphic sexually explicit subordination of women" through pictures or
words which portray women as enjoying humiliation, pain, or being the
victims of rape or other violence."
• MacKinnon argues that men seize women's sexuality, that pornography
increases the sexual appeal of the subordination of women ... that
pornography is central to women's subordination, … and that some
women enjoy creating pornography, even types of pornography that quite
expressly show women enjoying pain or subordination (such as sado-
masochistic pornography).
• The constitutional ground for invalidating the ordinance was that the
government was not allowed to distinguish on the basis of viewpoint;
thus, a statute that subjects to civil liability sexually explicit material that
implies that women enjoy their subordinate position, but not similar
material that portrays women as not enjoying such treatment, was
considered an improper government intrusion on freedom of expression.
• History of Feminism
• During the ancient times, there was scarce evidence of early organized
protest against such circumscribed status.
• In the 3rd century BC, Roman women filled the Capitoline Hill and
blocked every entrance to the Forum when consul Marcus Porcius
Cato resisted attempts to repeal laws limiting women's use of expensive
goods.
• Cato cried “If they are victorious now, what will they not attempt?” “As
soon as they begin to be your equals, they will have become your
superiors.”
• In late 14th and early 15th-century France, the first feminist
philosopher, Christine de Pisan, challenged prevailing attitudes toward
women with a bold call for female education.
• Her mantle was taken up later in the century by Laura Cereta, a 15th-
century Venetian woman who published Epistolae familiares (1488) or
“Personal Letters”; Eng. trans. Collected Letters of a Renaissance Feminist,
a volume of letters displaying an array of women's complaints, from
denial of education and marital oppression to the frivolity of women's
attire.
• By the end of the 16th century, another Venetian author, Moderata
Fonte who published Il merito delle donne (1600) or “The Worth of
Women, proclaimed that women would be the intellectual equals of
men if they were given equal access to education.
• The “debate about women” reached England only in the late 16th
century, when pamphleteers and debaters joined battle over the true
nature of womanhood.
• The first feminist pamphleteer in England, writing as Jane Anger,
responded with Jane Anger, Her Protection for Women (1589). This volley
of opinion continued for more than a century, until another English
author, Mary Astell, issued a more reasoned rejoinder in A Serious
Proposal to the Ladies (1694, 1697).
• The two-volume work suggested that women inclined neither toward
marriage nor a religious vocation should set up secular convents where
they might live, study, and teach.
• Influence of the Enlightenment
• The feminist voices of the Renaissance turned into a coherent philosophy
or movement with the Enlightenment when women began to demand
that the new reformist rhetoric about liberty, equality, and natural rights
be applied to both sexes.
• The Enlightenment philosophers focused on the inequities of social
class and caste to the exclusion of gender.
• Swiss-born French philosopher Jean-Jacques Rousseau, for example,
portrayed women as silly and frivolous creatures, born to be subordinate
to men.
• In addition, the Declaration of the Rights of Man and of the Citizen,
which defined French citizenship after the revolution of 1789, failed to
address the legal status of women.
• Female intellectuals of the Enlightenment were quick to point out this lack
of inclusivity and the limited scope of reformist rhetoric.
• Olympe de Gouges, a noted playwright, published Déclaration des droits
de la femme et de la citoyenne (1791; “Declaration of the Rights of
Woman and of the [Female] Citizen”), declaring women to be not only
man's equal but his partner.
• The following year Mary Wollstonecraft's A Vindication of the Rights of
Woman (1792) was published in England.
• Challenging the notion that women exist only to please men, she
proposed that women and men be given equal opportunities in
education, work, and politics.
• Women are as naturally rational as men. If they are silly, it is only
because society trains them to be irrelevant.
• The Age of Enlightenment turned into an era of political upheaval marked
by revolutions in France, Germany, and Italy and the rise of abolitionism,
i.e, to end slavery.
• In the United States, feminist activism took root when female
abolitionists sought to apply the concepts of freedom and equality to
their own social and political situations.
• Their work brought them in contact with female abolitionists in England
who were reaching the same conclusions.
• By the mid-19th century, issues surrounding feminism had added to the
commotion of social change, with ideas being exchanged across Europe
and North America.
• The suffrage movement
• The women ‘s suffrage movement was the struggle for the right of women to
vote and run for office and is part of the overall women’s rights movement.
• The first women's rights convention was held in July 1848 in the small town
of Seneca Falls, New York. The convention was planned with five days' notice,
publicized only by a small unsigned advertisement in a local newspaper.
• A “Declaration of Sentiments” that guided the Seneca Falls Convention
proclaim that “all men and women [had been] created equal,” and 11
resolutions, including the right to vote.
• All 11 resolutions passed with a final declaration “for the overthrowing of the
monopoly of the pulpit, and for the securing to woman equal participation
with men in the various trades, professions and commerce.”
• After the U.S. Civil War, American feminists assumed that woman suffrage
would be included in the 15th Amendment to the U.S. Constitution, which
prohibited disfranchisement on the basis of race.
• Their demand for the vote was based on the Enlightenment principle
of natural law, invoking the concept of inalienable rights granted to all
Americans by the Declaration of Independence.
• Radical feminists challenged the single-minded focus on suffrage as the most
essential element of women's liberation.
• Emma Goldman, the nation's leading anarchist, mocked the notion that
the ballot could secure equality for women. She stressed that women
would gain their freedom, she said, only “by refusing the right to anyone
over her body…by refusing to be a servant to God, the state, society, the
husband, the family, etc., by making her life simpler but deeper and
richer.”
• Likewise, Charlotte Perkins Gilman insisted that women would not be
liberated until they were freed from the “domestic mythology” of home
and family that kept them dependent on men.

• The “Second Wave women's movement of the 1960s and 1970s” of


Feminism
• Women's concerns were on President John F. Kennedy's agenda even
before this public discussion began.
• In 1961 he created the President's Commission on the Status of
Women and appointed Eleanor Roosevelt to lead it.
• Its report, issued in 1963, firmly supported the nuclear family and
preparing women for motherhood. But it also documented a national
pattern of employment discrimination, unequal pay, legal inequality, and
meagre support services for working women that needed to be
corrected through legislative guarantees of equal pay for equal work,
equal job opportunities, and expanded child-care services.
• The Equal Pay Act of 1963 offered the first guarantee, and the Civil Rights
Act of 1964 was amended to bar employers from discriminating on the
basis of sex.
• Mainstream groups such as the National Organization for
Women (NOW) launched a campaign for legal equity, groups staged sit-
ins and marches for any number of reasons—from attacking college
curricula that lacked female authors to promoting the use of the word Ms.
as a neutral form of address—that is, once that did not refer to marital
status. Health collectives and rape crisis centres were established.
• Children's books were rewritten to obviate sexual stereotypes.
• Women's studies departments were founded at colleges and
universities.
• Protective labour laws were overturned.
• Employers found to have discriminated against female workers were
required to compensate with back pay.
• Excluded from male-dominated occupations for decades, women began
finding jobs as pilots, construction workers, soldiers, bankers, and bus
drivers.
• The second-wave feminism provoked extensive theoretical discussion
about the origins of women's oppression, the nature of gender, and the
role of the family.
• “Anarcho-feminists,” who was more popular in Europe than in the United
States, resurrected Emma Goldman and said that women could not be
liberated without dismantling such institutions as the family, private
property, and state power.
• Individualist feminists, calling on libertarian principles of minimal
government, broke with most other feminists over the issue of turning to
government for solutions to women's problems.
• “Amazon feminists” celebrated the mythical female heroine and
advocated liberation through physical strength and separatist feminists,
including many lesbian feminists, preached that women could not
possibly liberate themselves without at least a period of separation from
men.
• Finally, three major streams of thought surfaced:
• The first was liberal, or mainstream, feminism, which focused its energy
on concrete and pragmatic change at an institutional and governmental
level. Its goal was to integrate women more thoroughly into the power
structure and to give women equal access to positions men had
traditionally dominated. While aiming for strict equality (to be evidenced
by an equal number of women and men in positions of power, or an equal
amount of money spent on male and female student athletes), these
liberal feminist groups nonetheless supported the modern equivalent of
protective legislation such as special workplace benefits for mothers.
• In contrast, the radical feminism aimed to reshape society and
restructure its institutions, which they saw as inherently patriarchal.
They argued that women's subservient role in society was too closely
woven into the social fabric to be unravelled without a revolutionary
revamping of society itself.
• They strove to displace hierarchical and traditional power relationships
they saw as reflecting a male bias and sought to develop non-hierarchical
and anti-authoritarian approaches to politics and organization.

• Finally, cultural or “difference” feminism, the last of the three currents,


rejected the notion that men and women are intrinsically the same and
celebrated women's differences, such as their greater concern for
affective relationships and their nurturing preoccupation with others.
They criticised the stand of mainstream feminism's attempt to enter
traditionally male spheres as denigrating women's natural inclinations by
attempting to make women more like men.
• Globalization of Feminism
• Twentieth-century European and American feminism eventually reached
into Asia, Africa, and Latin America.
• As this happened, women in developed countries, especially intellectuals,
were horrified to discover that women in some countries were required to
wear veils in public or to endure forced marriage, female infanticide, widow
burning, or clitoridectomy.
• Many Western feminists soon perceived themselves as saviours of Third
World women, little realizing that their perceptions of and solutions to social
problems were often at odds with the real lives and concerns of women in
these regions.
• The conflicts between women in developed and developing nations have
played out most clearly at international conferences.
• After the 1980 World Conference of the United Nations Decade for Women:
Equality, Development and Peace in Copenhagen, women from less-
developed nations complained that the veil and female genital surgery had
been chosen as conference priorities without consulting the women most
concerned.
• It seemed that their counterparts in the West were not listening to them.
• During the 1994 International Conference on Population and Development in
Cairo, women from the Third World protested outside because they believed
the agenda had been hijacked by Europeans and Americans.
• The protesters had expected to talk about ways that underdevelopment
was holding women back. Instead, conference organizers chose to focus
on contraception and abortion.
• “[Third World women] noted that they could not very well worry about
other matters when their children were dying from thirst, hunger or war,”
wrote Azizah al-Hibri, a law professor and scholar of Muslim women's
rights.
• “The conference instead centred around reducing the number of Third
World babies in order to preserve the earth's resources, despite the fact
that the First World consumes much of these resources.”
• Even in Beijing, at the Fourth World Conference on Women in 1995, Third
World women criticized the priority American and European women put
on reproductive rights language and issues of discrimination on the basis
of sexual orientation and their disinterest in the platform proposal that
was most important to less-developed nations—that of restructuring
international debt.
• Around the world, women are advancing their interests.
• Feminism was derailed in countries such as Afghanistan, where the
staunchly reactionary and antifeminist Taliban banned even the education
of girls.
• Elsewhere feminism achieved significant gains for women, as seen in the
eradication of female genital surgery in many African countries or
government efforts to end widow burning in India.
• More generally, and especially in the West, feminism has influenced every
aspect of contemporary life, communication, and debate, from the
heightened concern over sexist language to the rise of academic fields such as
women's studies and ecofeminism. Sports, divorce laws, sexual mores,
organized religion—all have been affected, in many parts of the world, by
feminism.
• Yet questions remain:
• How will Western feminism deal with the dissension in its ranks, from women
who believe the movement has gone too far and grown too radical?
• How uniform and successful can feminism be at the global level?
• Can the problems confronting women in the mountains of Pakistan or the
deserts of the Middle East be addressed in isolation, or must such issues be
pursued through international forums?
• Given the economic, political, and cultural situations that vary from country
to country, the answer to these questions may look quite different in Nairobi
than in New York.
• Additional Reading
• ALICE S. ROSSI (ed.), The Feminist Papers: From Adams to de Beauvoir (1973, reprinted 1988),
collects the key works of the last 200 years of feminism. ROSEMARIE PUTNAM TONG, Feminist
Thought: A More Comprehensive Introduction, 2nd ed. (1998), provides a comprehensive
map of 20th-century feminist thinking that includes liberal, radical, Marxist-socialist,
postmodern, and multicultural feminism. Perspectives from around the world are portrayed
in EUGENIA C. DELAMOTTE, NATANIA MEEKER, and JEAN F. O'BARR (eds.), Women Imagine Change:
A Global Anthology of Women's Resistance from 600 B.C.E. to Present(1997), a
representation of women from 30 countries; and MARLENE LEGATES, Making Waves: A History
of Feminism in Western Society (1996), a comprehensive survey of feminism in Europe, the
United States, Canada, and Latin America dating from early Christian times to the present.
Texts focusing on feminism in the United States include JANE RENDALL, The Origins of Modern
Feminism: Women in Britain, France, and the United States, 1780–1860 (1984, reissued
1990), which examines the political and social position of women in a comparative context in
order to locate the sources of women's rebellion; while ELEANOR FLEXNER and ELLEN
FITZPATRICK, Century of Struggle: The Woman's Rights Movement in the United States,
enlarged ed. (1996), is the classic history of the complex social and political problems that
confronted 19th- and early 20th-century American suffragists. Questions of class and culture
are treated in M. JACQUI ALEXANDER and CHANDRA TALPADE MOHANTY (eds.), Feminist
Genealogies, Colonial Legacies, Democratic Futures (1997), which challenges mainstream
notions of global feminism and embeds the struggles of women in the Third World in the
struggle against neocolonialism; while UMA NARAYAN, Dislocating Cultures: Identities,
Traditions, and Third-World Feminism (1997), shows how both Western and Third World
scholars have misrepresented Third World cultures and feminist agendas. KAREN
OFFEN, European Feminisms, 1700–1950: A Political History (2000), looks at the development
of European feminism from the Enlightenment through the mid-20th century.