![]()
Part I
Gender as a social category
![]()
2 The three stages of gender in law1
Barbara Havelková
Much has been written about gender in Czechoslovak state-socialist society, culture and policies (see for example Scott 1974; Köhler-Wagnerová 1974; Heitlinger 1979; Wolchik and Meyer 1985; H. Havelková 1993, 1999; LaFont 2001; Vodochodský 2007), but relatively little on gender in law. This chapter offers one such analysis – it examines how gender was regulated in law and understood and constructed by the legal community.2 It examines legislation, judgements, explanatory memoranda to bills, and academic legal scholarship.3 For reasons of space, I primarily assess what was identified as comprising the ‘woman question’ by the state; namely, family (understood exclusively heteronormatively) and paid work (Radvanová et al. 1971; Bauerová and Bártová 1987).4 This results in two limitations. First, the official silence surrounding issues ignored by state policy, such as gender-based violence or LGBT rights (B. Havelková 2009a: 195–7; B. Havelková 2010a: 23), is not remedied in this chapter. Second, beyond areas obviously affecting women or gender relations, law is androcentric and many seemingly neutral legal institutions, such as self-defence in criminal law5 or the law of property,6 contain a strong male or patriarchal bias. An analysis of how this bias changed in a ‘classless’ society would be an interesting and important endeavour, but it goes beyond the scope of this chapter.
In this chapter, I offer a diachronic analysis of the period, and argue that the period of state socialism was not homogeneous, but that the original equalizing zeal of the Stalinist period of the 1950s started to be challenged during the political thaw of the 1960s and became hollowed during the Normalization of the 1970s and 1980s. I refer to these three different stages of gender equality as (1) Equalization (1948–62); (2) Reflection (1963–8); and (3) The era of the family (1969–89). The existing social science literature usually discerns two periods: (1) an emancipatory, equalizing, revolutionary and activist stage of the late 1940s and 1950s; and (2) a family-oriented, conservative and stability-centred one in the 1970s and 1980s (Scott 1974: 1; Vodochodský 2007: 38; Wagnerová 2011: 15). I argue that, based on my analysis of the legal developments and legal policy debate, the period of political thaw in the 1960s needs to be assessed separately (a similarly nuanced periodization has been offered by Wolchik 1981b; Hašková and Uhde 2009; and Roubal in this volume). The emergent pluralism of this time brought challenges from women (organized and individual) of the official narratives of ‘equality achieved’ but it also brought challenges from experts to the concept and policy of equality of the sexes and opened debates about the policy’s economic (in)efficiency. The period of the 1960s must thus be assessed more critically from the gender perspective than it so far has been from the point of view of general political history.
My observations of a regression in the modernization of women’s status and equality during the state-socialist period, as well as the problematic pluralism of the 1960s, both allow for a more nuanced analysis of the continuities and discontinuities between state socialism and post-1989 transition.7 The legal framework inherited in transition came from the so-called Normalization (1969–89) – it actively supported and entrenched difference between the sexes, especially in the family. A woman was no longer the worker and active citizen of the 1950s; she was the wife who cared for her marriage and the mother who cared for her family. When claiming, in the 1990s, that gender equality needed no further attention as it had been addressed and achieved under state socialism, Czechs did not realize that what was in fact inherited was pro-family and pro-motherhood, but not necessarily pro-gender-equality policies. At the same time, what became the scarecrow in the 1990s was the earlier model of equality, exemplified by a female tractor driver of the 1950s. The transition-period rhetoric against ‘state feminism’ and forcible equality of the sexes thus distanced itself from policies that had not been current for about three decades. The 1960s also played a particular role in transition. The period of political thawing and pluralism prepared the ground for the liberalism of transition. The challenges to the efficiency of women’s work, full equality and collective childcare as well as the narrative of freedom and choice that became prominent in transition, were in some cases a reoccurrence, in some cases a continuation, of the debates that led to the Prague Spring of 1968 (B. Havelková 2013).
Equalization (1948–62)
Before the communists came to power in 1948, the situation of Czech women was marked by two tendencies: gradual equalization and an increase of protection in labour relations (B. Havelková 2009a: 187). These tendencies corresponded to the campaigns of first-wave feminist activism and the socialist movement respectively. After 1948, both equalization and the guarantee of special (protective) rights were enhanced. The ‘equal rights of the sexes’ were enshrined in the Constitution8 and vigorously applied by the Stalinist courts (Kühn 2005: 35–7). The period of the late 1940s and 1950s was characterized by an emphasis on women’s access to the public sphere of work, education and politics. This was the period when the East did overtake the West in terms of an equalization of the legal status of men and women (especially family law), and in eliminating some legal restrictions on women’s lives (legalization of abortion and liberalization of divorce). The relative backwardness of the West was noted by many female Prague Spring émigrés (Wagnerová 2011).
Equality in the family
The 1948 Constitution put ‘marriage, family and motherhood […] under the protection of the state’.9 The new Act on Family Law of 1949 modernized family relationships and brought about de jure equality between husband and wife. The reform caught the imagination of the legal community – in the first few years of state socialism, it was one of the most discussed topics of legal scholarship in the two studied periodicals, Právník and Socialistická zákonnost.
The new Act abandoned the legal institution of ‘head of household’ (hlava rodiny) that stipulated that the husband led the household, decided the place of residence, and was owed help and obedience of his instructions by his wife.10 The previously separate roles of husbands (to see to the financial support and maintenance of the children) and wives (to care for their physical well-being and health) were eliminated11 – the new Act stipulated equality of spouses in the marriage. ‘Domestic chastisement’ was no longer permitted by criminal law.12 The new Act also abolished a previously existing right of annulment for a husband who found out his wife was already pregnant upon marriage.13
The spouses also became equal in relation to their children14 – the provision on ‘paternal power’ (moc otcovská), which gave the father the sole right to decide over his children’s choice of occupation and property, was abolished.15 This was thus a shift away not only from patriarchy in the sense of gender power of men over women, but also a termination of the power of paterfamilias, in the Roman Law sense, over his family (for the distinction of these two meanings of patriarchy, see for example Lerner 1986: 239).
Economic relationships between the spouses were also equalized. The default option of communal property of the spouses did not exist under the pre-communist regime.16 If not otherwise contracted, the property was retained individually; in case of doubt, it was presumed the husband was the owner.17 Similarly, unless challenged by the wife, it was presumed that the wife gave the husband rights of management of her property.18 The new Act on Family Law created in 1949 a statutory community of marital property (zákonné společenství majetkové),19 which made all acquired property co-owned by both spouses, and the management of this property belonged to both spouses equally.20
The state also put great emphasis on child maintenance, both during and after marriage.21 The constitutional equalization of ‘legitimate’ and ‘illegitimate’ children22 was accompanied by obligations on fathers towards children of unmarried mothers.23 The enforceability of child maintenance after divorce was improved through the docking of wages by the socialist employer.24 A system of state involvement in cases of non-payments of child support was instituted in 1948.25 All of these measures had an important gender dimension, as custody of children tended to be awarded to the mother and the high costs of child-rearing and insufficient financial support for childcare after divorce were a common cause of destitution for divorcees.
Divorce laws were gradually liberalized. Admittedly, the pre-1948 General Civil Code in its last valid version did not distinguish between men and women in access to divorce, but divorce was very limited in cases lacking the consent of both parties. The new Act broadened access to divorce, even though the spouse who caused the breakdown could not be granted divorce without the consent of the other spouse (who was not at fault).26 The requirement of proof of fault was alleviated in 195527 and finally abolished by the new Act on Family in 1963.28
It is worth noting that the communist government was not the first to propose such changes. A reform of family law (and the Civil Code more generally) had been debated but never passed during the entire period of the First Czechoslovak Republic (1919–38). A version of a family statute was drafted by non-communist lawyers and politicians (Feinberg 2006: 41–72). Unlike during the First Republic, when, as Feinberg noted, ‘[w]omen might have [had] an equal say in the voting booth, but inside their homes they remained subject to their husband’s authority’ (Feinberg 2006: 99, 128), the communist government was committed to formal equality in the family. The notion of equality went so far, that the maintenance of a divorced spouse, a provision that traditionally protects economically inactive wives from economic decline after divorce, was abolished. This development, founded on the presumption of full employment of women and their economic independence, however, outstripped the actual development of women’s status and the provision was reintroduced in 1963 in a gender-neutral form.29
New family?
Conceptually, many of these provisions can be seen as a part of a revolutionary programme of the weakening of the family. Dana Hamplová, a historian writing during transition, observes that in the 1950s this was an explicit aim found in propaganda as well as in practical policies (Hamplová 2010). She notes that ‘[t]he family is dangerous to revolutions, not only because it competes [with the revolution] for loyalty, but also because within it, existing values and norms are perpetuated and passed on’ (ibid.: 2).
This analysis is correct when one looks at the legal provisions, but might be too strong when legal academic commentary is taken into account. Although law made the dissolution of families easier and the outright discrimination toward children of unwed parents was abolished, legal scholarship contained a strong marital normativity – children of unmarried mothers were still considered a social evil (and a capitalist hangover) (Patschová 1953: 15), marriages were lauded as a sure sign of ‘good economic and political circumstances’ (ibid.: 18) and the courts were instructed to prevent ‘impetuous and frivolous divorces’ (ibid.: 18).
What did happen during the Stalinist period, however, was an increase in the public involvement of state and law in the family. Many issues previously considered a private matter became a public concern. The state became involved both by enacting legislation that ran contrary to some traditional practices – with relation to the roles of the spouses in the family or the right to divorce. But it also assumed an active role through its institutions. For example, the child support obligation of fathers towards their children was considered ‘an obligation of an individual toward society’ (ibid.: 21) and its enforcement was fully in the hands of society – the state as employer docked the liable parent’s wages.30 The non-payment of alimony was a criminal offence.31 The public prokurátor (procurator) was then given competence to initiate proceedings in matters of paternity ex officio to establish who was liable for child support (Glos and Kafka 1953).32 The fact that the state had no qualms about interfering in issues previously considered private was positive during the early Stalinist period from the gender perspective when the aims of the interference were still gender-progressive. As I discuss below, however, the state gradually abandoned its revolutionary zeal, and other issues, often in conflict with gender equality, gained importance.
Reproduction – protecting the health of women
In the international context, a noteworthy feature of the Eastern push for equality of the sexes was the early and broad legalization of abortion. State-socialist Czechoslovakia legalized abortion in 1957 by adopting the Act on the Artificial Interruption of Pregnancy.33 The use of the term ‘interruption of pregnancy’ itself was significant – it centred on pregnancy, and whether the woman would continue or interrupt it, and not the fetus, and whether it would stay or be aborted.
The Act stipulated that abortions could be performed for health as well as other important reasons. The latter included the age of the woman, number of children, loss of husband or his invalidity, breakdown of the family, the fact that the responsibility for financial support of the family or the child fell on the woman, difficulties connected to pregnancy of a...
