Introduction to Feminist Jurisprudence

Hilaire Barnett

• Publisher: Routledge-Cavendish
• Year: 2013
• ISBN:
  9781135350574
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book provides a student text covering the major issues in feminist jurisprudence and to analyse the manner in which both traditional jurisprudence and law have remained a masculine subject.

PART I

THE FOUNDATIONS OF FEMINIST JURISPRUDENCE

CHAPTER 1

INTRODUCTION

THE EVOLUTION AND SCOPE OF FEMINIST JURISPRUDENCE AND FEMINIST LEGAL METHODS

The debate concerning the status of women dates back to the Ancient Greeks. Plato¹ and Aristotle² both sought to analyse the actual and appropriate role of women in society and from their writings may be discerned many of the ideas which continue to exercise feminist scholarship.³ In ancient Greek thought can be found many of the ideas which have endured in later thought: the concepts of public and private life which are allegedly distinguishable, with the confinement of women to the private sphere;⁴ considerations of equality based on gender; the concept of patriarchal ownership of, and/or authority and power over women.⁵

However, it is eighteenth, nineteenth and early twentieth century feminist campaigns⁶ for the elimination of discriminatory laws which prevented women from participating fully in civic life which mark the origins of contemporary feminist thought.⁷ The struggle for the franchise and the battle to be admitted to universities and the professions represented a seminally important, and ultimately largely successful, campaign on which subsequent work towards the full emancipation of women in society was founded.

In Europe, the First World War, the depression of the inter-war years, the Second World War and the subsequent struggle for economic recovery and the rebuilding of a viable peaceful society, resulted in a quiet phase for feminist endeavours, with one principal exception: in the United Kingdom the struggle for the vote for women over the age of 30 was finally achieved in 1918, and the full franchise for women on a basis of equality with men in 1928.

In 1949, Simone de Beauvoir's seminal work, The Second Sex, was published⁸ and the movement revitalised. Simone de Beauvoir's work still forms a foundation for much feminist analysis and a focus for differing approaches to the question of gender and its significance. The core theme running through de Beauvoir's work is that of women being the ‘Other’ (sex). By this de Beauvoir means that the construction of society, of language, thought, religion and of the family all rests on the assumption that the world is male. It is men who control the meaning given to society: man is the standard against which all is judged. Women, on the other hand, are excluded from these constructions: women is the ‘Other’. Through nurturance and socialisation a female child learns to become a woman. Women, de Beauvoir argues, are socially constructed rather than biologically determined: ‘[O]ne is not born, but rather becomes, a woman.’⁹ Being a woman – the Other – is reflected in law's construction. Law is male; the subjects of law are male. As de Beauvoir wrote:

She is defined and differentiated with reference to man and not he with reference to her; she is the incidental, the inessential as opposed to the essential. He is the Subject, he is the Absolute – she is the Other.¹⁰

The categories of Self and Other, de Beauvoir instructs, are as ‘primordial as consciousness itself’. In all societies, there exists the essential and the inessential; the Self and Other, and all societies reflect this duality.¹¹ Considering this phenomenon in relation to law, it can be seen that traditionally law has been a male construct and that the subject of law is male. Women, being the Other, have been for long at worst oppressed, and at best ignored by the law. For women to be included as subjects of law, their voices have to be listened to and, more importantly, to be heard and acted upon. For too long the law, legal theory and jurisprudence has presented itself as a rational objective ordering of gender-neutral persons, while at the same time subconsciously addressing only the essential male.

Feminist scholars in the liberating 1960s were dedicated to the political struggle for the equality of women in the family, in the work place and in politics. By identifying sites of exclusion and oppression, feminist scholars, whether writing from a social or political science or philosophical base, demonstrated further the supremacy which men have traditionally assumed and maintained in society. Feminist legal scholarship became a natural and integral part of this movement, although lagging behind the general movement.¹² Feminist jurisprudence is both simultaneously challenging and alternative, and reflects the demands of women – irrespective of race, class, age, or ability – to be recognised as an equal party to the social contract which is underpinned by law and legal systems.

Subsumed within the quest for equality there exist many lines of inquiry. From what origins, for example, have the inequalities which have for long been enshrined in law derived? Or to rephrase the question, why is society and law – from a feminist perspective – a reflection of masculine power and authority? One aspect of feminist scholarship – whether engaged in from a political or legal perspective – seeks to understand and to develop a secure theoretical base of knowledge from which to press for reform. Other scholars have long been, and remain, primarily concerned with the analysis of specific inequalities based on gender. Thus, for example, the criminal justice system, the law relating to the family, employment law and other substantive areas of law form the focus for study with a view to the eradication of often subtle but pervasive gender-based inequalities.

Feminist legal scholarship is frequently presented as having differing phases or waves, although none of these is totally distinct or isolated from other phases.¹³ First phase feminism which may be dated from mid Victorian times to the present time, although most vociferous from the 1960s through to the mid 1980s, is dedicated to unmasking the features which exclude women from public life. As Ngaire Naffine has written ‘... the first phase can be characterised by its concern with the male monopoly of law’.¹⁴ The quest is for equality, whether in employment generally, or in the professions or in politics. First phase feminists work within the existing system in order to remove the inequalities of the system, without necessarily questioning the system itself. This liberally inspired enterprise undertaken by the women's rights’ movement accepted law as traditionally portrayed: the rational, objective, fair, gender-neutral arbiter in disputes over rights which applied to undifferentiated but individual and autonomous legal subjects. The objections voiced by feminists in this phase was to not law per se but to ‘bad law’: law which operated to the exclusion or detriment of women.¹⁵

‘Second phase feminism’, which dominated the late 1970s and 1980s, addresses not so much the substantive (legal) inequalities under which women exist – although these remain a focus for action – but rather the legal and societal structure which perpetuates inequalities. Here the focus is less on the male monopoly of law and the correlative inequalities of women, but on understanding, ‘the deep-seated male orientation which infects all its practices’.¹⁶ First phase feminists had made many remarkable advances for female equality. However, despite these achievements, it remained the case that women were treated differently and discriminated against. If women enjoy the same capacities and talents as men, and all that is required is an analysis, recognition and reversal of the existing inequalities, how is it that women remain, still, despite all the reforms, the ‘second’ and ‘lesser sex’? The answer lies in the masculinity of law and legal systems. For second phase feminists, of differing political persuasions, the root problem with law lies in its pretended impartiality, objectivity and rationality. By assuming gender-neutral language, law masks the extent to which law is permeated by male constructs, male standards. The ‘reasonable man’ so beloved by the common law, does not include women. If women are to be ‘reasonable’, within the legal meaning of the term, they must adopt the male standard of reasonableness.

The analyses – and there is no single or simple analysis of this work – centres on the construction of society as patriarchal in its broadest sense. Radical feminists, Marxist/socialist feminists, all – in their differing manner – focus not on specific inequalities supported by law, but on the societal structure which forms the foundation for law.¹⁷ Cultural, or difference feminism, on the other hand, focuses more specifically on the gender issue – on women's difference from men – and its ramifications. To take but one example for introductory purposes, radical feminists¹⁸ argue that the true source of inequality lies not just in the failure of society (and law) to accommodate women on an equal basis, but rather that law and society is deeply gendered in all its aspects and that the relationship between the sexes is determined, not by some historical or cultural accident, but by the dominant position assumed by men which results in female subordination. Sexual relations – in the broadest sense – are explained not so much by biological or gender differences, but by the dominance of men and the subordination of women, a subordination supported, reinforced and maintained by men and which many women unconsciously also support. The patriarchal tradition may – as with so much of legal and political philosophy – be traced back to Ancient Greece. We find in Aristotle, for example, the clearest exposition of the view that the man is the head of the household; that it is he who holds authority over ‘his’ wife and children ‘... for the male is more fitted to rule than the female, unless conditions are quite contrary to nature ...’.¹⁹

This assumption about women's appropriate role, based on women's lesser physical strength and her role in childbearing, has carried forward throughout society, universally and from time immemorial, and remains a principal site of women's oppression. It is for reasons such as this that feminist Shulamith Firestone argued in the 1970s, that the essence of women's subordination remains situated in women's biological role, and that until reproductive technology is developed to the point of freeing women from the oppression of the womb, women will never be truly free.²⁰ But, while medical science and technology come closer to the era of emancipating women from the tyranny of childbirth, and society recognises (even if it does not implement) the need for childcare facilities to release women's energies for other pursuits, there remains a deep social and political resistance to women abandoning or giving less priority to the traditional mothering role. Further, demands such as Firestone's, for the release of women from traditional roles, lead to s...