Feminist Jurisprudence - Essay Example

JURISPRUDENCE This term is yet to be understood in its full sense. For, so far now the word jurisprudence has various definitions. This is generallymeant as knowledge of law. The classifications and further thoughts on unwritten laws lead to expansion of jurisprudence as a subject of research like science and arts. Geography and religion play crucial roles in this study, since zonal culture is the chief factor underlying. In civil law countries jurisprudence is a technical term referring to a settled course of judicial decision. Analytical, philosophical and sociological jurisprudence are all colligated as positivism.1 From the ancient history till date, law is something framed by males, in which certain considerations and concessions are awarded to women hood preserving the right to make law in the hands of males. Kautilya2 an ancient Indian scholar who's Arthasastra is famous for its depiction of instructions and advices to a king clearly required the state to provide for the maintenance of childless women. In his view moral considerations were not to occupy the politics, which should simply concentrate on victory only. The magnum opus Arthasastra fulfils the requirements of twentieth century international law for the recognition of a state. In ancient Rome, pontiffs and their sons were alone empowered to deliver judgements. Only in third century BC some eminent groups like Proculians and Sabinians produced a relevant literature. In the cultural movement during Byzantine Empire in 5th century only Justinian's Corpus Juris Civilis was born.3 Feminist jurisprudence is a philosophy based on political, economic and social equality of sexes. This theory is believed to have sprung up in 1960s. Feminists strongly believe that gender is created not by biological difference but by social interpretations. Physical appearances and capacity of reproduction of women, according to them, should be considered as identity factors only. In other areas like psychological, social and moral traits, women are to be treated at par with men. Although feminists have a common ideology of women rights, they are divided among themselves in some basic thoughts. Liberal feminists are staunch in their endeavour of erasing gender-based discriminations in recognised laws against women. Cultural feminists aspire for the recognition of women's moral voice of caring and communal values. Radical feminists strongly object to simply accommodating the physiological and emotional differences of women, but they require a society to construct an equality of sex based on these differences. The practicability of feminist jurisprudence lies in accepting the fact that people live in a patriarchal society. Researchers derive at a conclusion that patriarchy emerged since the advent of agrarian societies; they are of the view that women were enjoying relatively high status in pre-agrarian societies. The role of women in this period is something more than childbearing and caring the family as they shared the production related works with males. (Patrie, 1923) Agrarian production brought importance to ploughs and consequently to males who became the breadwinners of the family and began to posses control over resources. During this era, the might of women in their family administration was tactfully recognised by men within the walls of the family making them feel 'moron' outside their family. First-wave feminism prevailed from nineteenth century up to late 1960,during when abortion and contraception were not the issues handled by the feminists, who involved in political power games behind policy making in the UK and France; they were campaigning in favour of education, employment, marital rights and rights to vote only. They began to think of contraception followed by abortion only after First World War. Feminists in France happened to realise the need for abortion after the Second World War. Technological developments in the aftermath of World War II threw light on use of contraceptives and non-surgical abortion. France still under the strong clutches of Roman Catholic Religion was slow in winning the equality in marriage. (Melanie Latham, 2002) Before we talk about the issue of abortion, let us try to unearth the cause of situation that lead to abortion, preferably wilful abortion. The biological and emotional nature of women makes them sexually repressed. This repression is part of their sexuality and does not constitute any conflicting factor. Breaking the confines of legally sanctioned sexuality does not fetch any thing fruitful to women. By way of having sex with husband-a socially accepted norm-a woman accedes to and reinforces the subjugation of female to male and her dependence on her husband. If a woman wants to counter this subjugation by having extra marital sex, she does not get satisfaction of winning the male domination; but instead, she realises a disheartening fact that the repression still persists. (Claidie Broyelle,1977) Now we come to abortion. Even before the word abortion was coined in history the practice of killing infants was in vogue. Infanticide was considered as a way of population controlling in Europe and Britain. Historian Langer noted in 1972 that Aristotle and Plato were advocating infanticide as a means of regulating the size of population and saving the society from having deformed and diseased infants. (Arlene Skolnick, 1973) Now abortion is not an issue of a single nation or society; it has attained global identity. Man may think that this is a woman's issue. But it is not so. Because, it is the man who makes a woman conceive. Hence, fleeing from the issue just because the abortion is something about unwanted pregnancy is irresponsibility on the part of man. And, out of this responsibility feministic perception sprang. Feminism began to intrude in all walks of life including politics where it meets heavy challenges. We shall now analyse the abortion laws of different nations. As regarding the Law on Abortion, the 1967 Abortion Act of UK permits abortion to be carried out within 24 weeks of pregnancy. It also obligates two doctors to give consent stating that continuance of pregnancy would be detrimental to the physical and mental health of the women concerned and / or the living children. This Law is not applicable to Northern Ireland where abortion is still illegal. This makes it clear that the right to opt for an abortion is not fully vested with women. The Government considers the physical and mental health aspects alone as deciding factors in the issue of abortion. A woman cannot decide if she wants to retain the embryo or not. Although reproduction crosses the major portion of period in women, the right to have a child or not was not shared with them. Only the last thirty years is seeing a fast growth in feminist mobilisation that is known as 'second wave feminism.' In the United States, the abortion law has been undergoing drastic changes showing different faces in various states. A uniform Law on Abortion throughout the country could not be enacted. Geography, culture, religion and social beliefs of people of different area play crucial role in their feminist jurisprudence too. The decision of the Supreme Court of U.S in 1973 in the Roe.v.Wade and Doe.v.Bolton cases was a jolt to those who were against abortion. In the event of reversal of Roe and Doe court rulings, the status of legal abortion would vary from state to state. Fifteen states have not repealed the pre-Roe abortion bans. However court rulings in seventeen states-including seven of those with pre-Roe laws prohibiting abortions-declare that their state constitutions permit abortions above and beyond the Federal Constitutions. (Carrie Gordon Earll, 2005) In support of the Unborn Victims Violence Act (HR 503), The United States House of Representatives tried to project foetus killing as a crime. The Act awaited approval from the Senate; President Bush indicated that he would sign the bill into law. However the Supreme Court never accepts this type of definition of a foetus being given human status. Thus the fate of the bill had been entrusted in the hands of the political tussle between Democrats and Republicans in the Senate. Though the bill was seemingly targeted against the attackers of pregnant women, Carolyn Maloney, a Democrat from New York assumed this as an erosion of women's reproductive right. (Michel Fowler, 2001) In Australia, the most liberal abortion Law was passed in 1998 by the Western Australian Parliament of Legislation. When two Perth doctors were to be prosecuted in 1998 under Western Australian Laws that made abortion a crime, some political events lead to the passage of the above said law. The broad three categories of the criminal abortion law are: unlawful abortion, child destruction and law of homicide. However the implication, application and enactment of relevant laws were different in each state and territory of Australia. A unified code could not be laid in all the territories and states of Australia. (Natasha Cica, 1998) In Canada, except in many rural areas and Prince Edward Island, abortions are readily available in major cities. If a Roman Catholic group offers a medical service, then individuals are frequently denied local access to medical services including abortion. The criminal code no.233 of Canada states: "a person commits homicide when he causes injury to a child before or during its birth as a result of which the child dies after becoming a human being." However the country still remains without a law regulating abortions. (B.A.Robinson, 1998) Emergence of feministic perception is virtually at a distance. In Philippines abortion is absolutely illegal punishable with six years imprisonment to both the abortionist and the woman concerned. To elude the fundamental tenets of Catholicism, thousands of Philippines women resort to unauthorised abortion through private abortionists to terminate unwanted pregnancies. A bill to set up national health policy on reproduction has gone into the stockpile of parliament. Catholic Bishops of Philippines unmindful of political pursuance, issue guidelines, since they feel there are moral issues in politics as far as abortion is concerned. (Sebastien Berger, 2005) In Brazil the current law and its Penal Code legalises the abortion only on two situations; one in rape and the other when pregnancy threatens the life of the woman. Because of this insufficient law many women there too put their lives under the risk of unsafe abortion. Maria Laura Sales,4 Vice Minister of Women's Affairs, Brazil cleverly put, " Women in Brazil should be able to determine their futureand control their own fertility." This sounds a healthy tone. In addition to striving and struggling for rights at par with men, if women begin to live a life of self-consistency, a stable and glowing society can be formed. Consent by women is obligatory for abortion in India. The Penal Code regarding miscarriage reads: Code 313: Causing miscarriage without consent: - Whoever commits the offence defined in the last preceding section (Causing miscarriage) without the consent of the woman, whether the woman is quick with child or not, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Though the right to terminate an unwanted pregnancy is awarded to women in India, the cultural, economical and social thrust on them outweighs the pleasure of freedom. An unmarried woman in India if undergoes abortion, the chances of her being married afterwards are very less. Even married women are put to lot of reprimands and censures by the health staffs that attend her. Most of Indian women are attracted towards private nursing home and clinics only on the ground that they are not treated in a humane manner at state hospitals. Laws in India are comparatively effective; but implementation is very poor thereby diluting the very essence of the Laws. CONCLUSION Recent news in Deccan Chronicle dated 3.12.2005 is heartening. Lubna Hussain, a Saudi writer writes, "Islam has always defended and more pertinently championed the rights of women. The suppression of women that we witness today has nothing to do with religious precepts but is more attributable to male insecurity and often implemented under the guise of protecting woman. (..) It is a Saudi woman who holds the highest ranking position held by an Arab in the UN." Thus feminist jurisprudence throughout the world has got momentum. The male domination is slowly becoming obsolete. However, because of cultural, social and economical thrust a neutral code of law could not be emancipated. Especially when dealing with the issue of abortion, the health, and emotional factors are to be given account for thus giving rise to diversified justifications. Reference list- Arlene Skolnick, 1973: "The Intimate Environment", Little Brown &Co, Boston pp283 B.A.Robinson, 1998: "Major Laws Concerning Abortion": U.S and Canada (http://religioustolerance.org) Carrie Gordon Earll, 2005 Focus on Social Issues: "Abortion Law in the United States" (http;//www.family.org/) Claidie Broyelle, 1977: "Women's Liberation in China", Harvester Press, Sussex, England pp141 Melanie Latham, 2002: Regulating Reproduction: A Century of Conflict in Britain and France", Manchester University Press, pp17 Michel Fowler, 2001: "Anti-abortion law through the back door", article dt4.05.2001 in spiked liberties (http://www.spiked-online.com/Articles/00000002D09B.htm) Natasha Cica, 1998 "Abortion Law in Australia": Research Paper 1 1998-99 Patrie W.M.Finders, 1923: "Social Life in Ancient Egypt," London Sebastien Berger, Manila, 21.10.2005: "Desperate women defy abortion laws", Telegraph news @ telegraph.co.uk on 3.12.2005 Read More