Sourcebook on Feminist Jurisprudence

Hilaire Barnett

• Publisher: Routledge-Cavendish
• Year: 2012
• eBook ISBN: 9781135353025
• Topic: Law
• Subtopic: Gender & The Law
• Index: Law

This book is a comprehensive analysis of the relationship between feminist theories and the law, and the way in which developments of the former have affected, and been affected by, the latter.

The book takes as its starting point a study of women and culture on an international level, which demonstrates how religious and cultural influences have been fundamental in establishing contemporary legal and social mores. This provides the setting for an investigation into legal and social discrimination and inequality, and how this has been addressed by the emergence of feminism. A number of critiques and developments are examined.

PART I

INTRODUCTION

CHAPTER 1

FACTUAL DATA ON THE WORLD’S WOMEN

The United Nation’s Report, The World’s Women, 1970–90,¹ provides a wealth of statistical and other data relating to women’s position in the world. This global survey reveals how inherent is the inferior position of women throughout the world:

THE WORLD’S WOMEN, 1970–90

Regional Trends: 1970–90

Over the past 20 years there have been important changes in what women do – out of choice or necessity, depending on the hardships and opportunities they face.

In Latin America and the Caribbean, women in urban areas made some significant gains according to indicators of health, childbearing, education and economic, social and political participation, but there was little change in rural areas, and the serious macroeconomic deterioration of many Latin American countries in the 1980s undercut even the urban gains as the decade progressed.

In sub-Saharan Africa, there was some improvement for women in health and education, but indicators in these fields are still far from even minimally acceptable levels in most countries. Fertility remains very high, and there are signs that serious economic decline – coupled with rapid population growth – is undermining even the modest gains in health and education. Women’s economic and social participation and contribution is high in sub-Saharan Africa. But given the large differences between men and women in most economic, social and political indicators at the start of the 1970s, the limited progress in narrowing those differences since then and the general economic decline, the situation for women in Africa remains grave.

In northern Africa and western Asia, women made gains in health and education. Fertility declined slightly but remains very high – 5.5 children in northern Africa and 5.3 in western Asia. Women in these regions continue to lag far behind in their economic participation and in social participation and decision-making.

In southern Asia, women’s health and education improved somewhat. But as in Africa, indicators are still far from minimally acceptable levels – and are still very far from men’s. Nor has economic growth, when it has occurred, helped women – apparently because of their low social, political and economic participation in both urban and rural areas.

In much of eastern and southeastern Asia, women’s levels of living improved steadily in the 1970s and 1980s. Many of the inequalities between men and women – in health, education and employment – were reduced in both urban and rural areas and fertility also declined considerably. Even so, considerable political and economic inequalities persist in much of the region – because women are confined to the lowest paid and lowest status jobs and sectors and because they are excluded from decision-making.

Throughout the developed regions, the health of women is generally good and their fertility is low. But in other fields, indicators of the status of women show mixed results. Women’s economic participation is high in eastern Europe and the USSR, northern Europe and northern America – lower in Australia, Japan, New Zealand and southern and western Europe. Everywhere occupational segregation and discrimination in wages and training work very much in favour of men In political participation and decision-making, women are relatively well represented only in northern Europe and (at least until recently) eastern Europe and the USSR.

Gaps in policy, investment and pay

Resounding throughout the statistics in this book is one consistent message. Major gaps in policy, investment and earnings prevent women from performing to their full potential in social, economic and political life.

Policy gaps

Integration of women in mainstream development policies. The main policy gap is that governments seldom integrate the concerns and interests of women into mainstream policies. Development policies typically emphasise export oriented growth centred on cash crops, primary commodities and manufactures – largely controlled by men. Those policies typically neglect the informal sector and subsistence agriculture – the usual preserve of women. Even when women are included in mainstream development strategies, it is often in marginal women-in-development activities.

Much of this gap is embodied in laws that deny women equality with men in their rights to own land, borrow money and enter contracts. Even where women now have de jure equality, the failures to carry out the law deny equality de facto. Consider Uganda, which has a new constitution guaranteeing full equality for women. One women’s leader there had this assessment: ‘We continue to be second-rate citizens – no, third-rate, since our sons come before us. Even donkeys and tractors sometimes get better treatment’.²

Counting women’s work. A second policy gap is that governments do not consider much of women’s work to be economically productive and thus do not count it. If women’s unpaid work in subsistence agriculture and housework and family care were fully counted in labour force statistics, their share of the labour force would be equal to or greater than men’s. And if their unpaid housework and family care were counted as productive outputs in national accounts, measures of global output would increase 25% to 30%.

Even when governments do consider women’s work to be economically productive, they overlook or undervalue it. Until recently, labour force statistics counted production narrowly, excluding such activities as grinding grain and selling home-grown food at the market. The International Labour Organisation widened the definition in 1982 but the application of the new standard is far from universal, and in most countries and regions only a small part of women’s production is measured. Without good information about what women really do – and how much they produce – governments have little incentive to respond with economic policies that include women.

Investment gaps

Education. There are also big gaps between what women could produce and the investments they command. Households – and governments – almost always invest less in women and girls than in mean and boys. One measure of this is enrolment in school: roughly 60% of rural Indian boys and girls enter primary school, but after five years, only 15% of the girls are still enrolled, compared with 35% of the boys.

The losses from investing less in girls’ education are considerable. Studies in Malaysia show that the net return to education at all levels of wages and productivity is consistently 20% higher for girls and young women than for boys and young men. And that does not include the second-round benefits of reduced fertility, improved nutrition and better family care.

One consequence of women’s low educational achievement is that it puts them at a disadvantage to their husbands when making major life decisions about the work they do, the number of children they have and the way they invest family income.

Health services. Another investment gap is in health services. Women need, and too seldom receive, maternal health care and family planning services. And families often give lower priority to the health care of girls than boys. Where health services are being cut back, as they so often are under economic austerity programmes, the health needs of women are typically neglected.

Productivity. These gaps in investing in women’s development persist in the investments that governments might make to increase their economic productivity. Governments give little or no support to activities in which women predominate – notably, the informal sector and subsistence agriculture. Indeed, government policies typically steer women into less productive endeavours. The infrastructure that might underpin their work is extremely inadequate. And the credit available to them from formal lending institutions is negligible. Often illiterate, usually lacking collateral and almost always discriminated against, women must rely on their husbands or on high-priced moneylenders if they want to invest in more productive ventures.

Pay gaps

Lower pay. There also are big gaps between what women produce and what they are paid. Occupational segregation and discrimination relegate women to low-paying, low-status jobs. And even when women do the same work as men, they typically receive less pay – 30 to 40% less on average worldwide. Nor are their prospects for advancement the same as men’s, with deeply rooted prejudices blocking them from the top.

No pay. Another pay gap is that much of women’s work is not paid and not recognised as economically productive. The work is considered to be of no economic importance is not counted, which brings the discussion back to policy gaps.

Trends in childbearing and family life

Giving women the means to regulate their childbearing enhances their ability to shape their own lives. Modern family planning methods make it far easier for women today to limit their fertility and, as important, to pick the timing and spacing of their births. Almost everywhere, the access to and the use of family planning are increasing, but not as rapidly as they might.

Fertility rates are declining in many developing countries but remain at quite high levels in most countries in Africa, in the southern Asia region and in countries of western Asia. Influencing the falling rates are broader use of effective family planning methods, changing attitudes about desired family size and reductions in infant mortality. With the spread of modern contraception, women are better able to limit their fertility. But safe contraception must be available and accepted by both women and men, and in some societies men often do not allow women to practise family planning.

The childbearing gap between developed and developing regions remains wide. In Asia and Africa, a woman typically has her first child at about age 19 or even earlier, her last at 37, for a childbearing span of 18 years. In some countries – such as Bangladesh, Mauritania, Nigeria, the Sudan and Yemen – girls often start having children at age 15. Compare this with developed regions, where a woman typically has her first child at 23 and her last at 30, for a span of only seven years. Women in developed regions have fewer children over a shorter span of years and thus need to devote a smaller part of their lives to childbearing and parenting.

Family planning and health service have helped women in many ways – improving their overall health status and that of their children and increasing their opportunities to take an expanded role in society.

Childbearing exposes women to a particular array of health risks. But the broader availability of family planning and maternal health services has reduced some of the risks of pregnancy and childbirth – delaying the first birth, allowing longer spacing between births, and reducing pregnancies among women who have had four or more births and thus face the greatest risk of haemorrhaging after giving birth. Complications from childbearing nevertheless remain a major (avoidable) cause of death for women in many developing countries – especially where family planning services are poor or hard to reach, where malnutrition is endemic among pregnant women and where births are not attended by trained personnel.

Healthier mothers are more likely to have full-term pregnancies and strong children. With more resources, they are better able to nurture their children. Better educated mothers are more likely to educate their children. The positive outcome: healthier, better educated families.

Poor women generally miss out on this positive cycle. Because they have little or no education, they have little knowledge of health practices and limited economic opportunities. They have no collateral for borrowing to invest in more productive activities. Simply trying to ensure that the family survives takes all their time. The unhappy outcome: sick, poorly educated families – and continuing poverty.

Poor teenage girls, the most vulnerable of mothers, face even greater obstacles. Cultural pressures, scant schooling and inadequate information about and access to family planning make them most likely to have unhealthy or unwanted pregnancies. In developed and developing countries alike, mothers aged 15–19 are twice as likely to die in childbirth as mothers in their early twenties, and those under 15 are five times as likely. They are less likely to obtain enough education or training to ensure a good future for themselves and their children.

Trends in marriages and households

In developed and developing regions alike, women now spend less time married and fewer years bearing and rearing children. Couples are marrying later and separating or divorcing more, in part because of their increased mobility and migration.

Throughout much of the world – the exceptions are in Asia and the Pacific – households are getting smaller and have fewer children. There are fewer multigenerational households, more single-parent families and more people living alone. Smaller households suggest the gradual decline of the extended family household, most evident in western developed countries, but also beginning to be apparent in developing countries. Also evident is a decline in the strength of kinship and in the important of family responsibility combined with greater reliance on alternative support systems and greater variations in living arrangements,

Because more women are living (or forced to live) alone or as heads of households with dependents, their responsibility for their family’s survival and their own has been increasing since 1970. Motherhood is more often unsupported by marriage and the elderly are more often unsupported by their children – trends that increase the burden on women. And even for women living with men, the man’s income is often so inadequate that the woman must tak...

Table of contents

• Front Cover
• Half Title
• Title Page
• Copyright
• Preface
• Acknowledgments
• Contents
• PART I: INTRODUCTION
• PART II: CENTRAL CONCEPTS IN FEMINIST JURISPRUDENCE
• PART III: WOMEN IN POLITICAL AND LEGAL THEORY
• PART IV: KEY ISSUES IN FEMINIST JURISPRUDENCE
• Index