Feminism and Feminist Research Methodology in Law - Essay Example

Introduction Feminism has been part of society for over a century. This phenomenon was responsible for social change through challenging the inherent biases and oppressions against women. However, in the field of law, feminism became an instrumental aspect only after the Critical Legal Studies movement in the nineteen eighties. This emerged as an instrumental part of law because it was responsible for bridging the discourse that was existent in law with regard to women issues. This particular essay shall focus on two specific elements of law i.e. feminist legal theory and feminist legal research. The paper will examine the portions that constitute these two aspects and what makes them interconnected. In other words, an examination of how legal feminism as a concept affects feminist legal research will be done. Aims of feminist legal scholarship Feminist legal scholars argue for a renewed dimension of research. They claim that gender recognitions had not been made in the past and that there is a need for adoption of a different phenomenon known as emancipator research. In other words, they are claiming that legal work needs to reflect the challenges affected by both sexes rather than merely focusing on the needs and perspectives of a universal experience. Radical legal feminists argue that men's experiences have always been treated as neutral or universal while female experiences are regarded as private or even negative. Consequently, these groups of legal feminists claim that there should be a radical transformation in law by accepting and changing power roles in the profession.1 Feminist research in law has been treated as something that lacks objectivity by opponents to this phenomenon. However, legal feminist researchers claim that objectivity is in fact a term coined by non feminists in an attempt to hide women's own subjectivity in law. Consequently, these proponents argue that research should not be treated as devoid off subjects. Instead, there should be an emphasis on the experiences and the actual challenges that subjects undergo in their everyday lives. Additionally, the latter adherents also claim that the utilisation of models during the research process is another way of forgetting the subject and thus renders such researches invalid. Distinctive features about feminist approaches to the study of law and how it compares to other approaches in the course Feminist legal theory is founded upon the premise that the law has been central in depicting historical subordination of women. There are two ways in which feminist legal theory can be treated the first is with regard to jurisprudence in which the law can be perceived as something that has been oppressive to the female gender. The second aspect is with regard to the transformation of society's perception of women through the law or through a reworking of the law. 2 This approach to the study of law is different from other arenas owing to the fact that it challenges the way the rights based approach to law or the liberal values in law are dealt with. The latter approach is synonymous with the liberal equality model of law. Here, greater emphasis is given to the issue of genuine rights accorded to the different genders rather than some of the conventional rights that have been accorded in the past to women. Through this school of thought, it is possible to see that there are certain links between injustice and gender. Feminist approach to law has also been instrumental in understanding that there are real differences between the genders and that these differences need not be obscured by the law. Instead, feminists assert that these differences should be brought to the table. The latter school of thought is held by sexual difference model adherents. However, the latter model is not synonymous to other feminists who claim that in order to ensure historic preclusion by the law is completely eradicated, then there must be treatment of both sexes as equal. These proponents hold that when the differences between the genders have been emphasised, then chances are that the very characteristics that have precluded women in the eyes of the law will be perpetuated. 3 The latter approaches to the study of law have also been instrumental in providing an understanding of some of the dominance related issues that exist in law as put forward by dominance model adherents. It should be noted that these feminists believe that society is inherently unjust. They assert that women have been oppressed and dominated by their male counterparts for a long time and that this has prevented them from achieving their full rights. However, the latter argument has been criticised by feminists themselves who claim that the dominance model treats the woman as a recipient rather than an agent of change. She is seen as someone who cannot control her own destiny or someone whose world is shaped by external agents. Through the anti-essentialist model of feminist legal theory, it is possible to comprehend some of the axes of oppression that exist within society as related to women. This is because the latter model holds that there can be no particular voice that can represent the general experiences of women. Instead, greater emphasis should be given to subordination issues as related to race, sexual orientation or class against the background of feminist ideals. 4 All the latter schools of thought are quite distinct from other approaches to law because they bring out the fact that there is a need to incorporate gender in the study of law. On top of that, they also emphasise the importance of looking at the law from another perspective i.e. as being subjective rather than being objective. Bartlett's evaluation of the three theories of knowledge in feminist thinking Bartlett believes that there are certain perspectives in feminist thinking that make them united. The first is that there are gendered components to certain areas of law that may even seem as though they were neutral. This is also brought out by the fact that most of these assertions had much to do with the way one operates in certain realms. Additionally, certain social, economic and political aspects have been hindering the full equality of the sexes. It can also be argued that most feminists believe that history has been unfair to them. 5 In other words, they believe that writing history from a male perspective has certain distortions in which the male standpoint is regarded as the norm while the female one is seen as a deviation. Feminists assert that sex should not be regarded as a basis upon which people behave in the manner that they do. This means that only physical appearance is determined by one's gender; other aspects such as psychological, moral or social traits are dependent on individuals and have very little to do with one's sex. However, the latter author brings out the fact that there are indeed some serious differences between these feminists. He claims that traditional views reflect a conflicting perspective from the other perspectives. This is because the latter adherents argue that all women are rational and that they should be given the same opportunity as men. This author argues that the latter view has somehow lost relevance in the western world and in most developed nations of the latter world. 6 He also discusses how liberal feminists believe in being gender neutral. In other words, they assert that women need to be given equal opportunities in the marketplace without special considerations of any form of affirmative action. These adherents claim that there should be no consideration of gender differences and that these should be erased. The latter school of thought brings out certain discourses that have been emphasised in the third perspective of feminism known as cultural feminism. Here, adherents claim that women tend to be more inclined to certain matters such as contexts, relationships, interpersonal positions among others. On the other hand, men tend to emphasise more on such issues as logic and rights. Consequently, the latter differences need to be recognised during applications within any particular profession. It can therefore be said that the three feminist schools of thought contradict one another as each one is presenting its own school of thought. What the methods reveal that traditional doctrinal legal methods ignore The first thing that emanates from feminist approaches to law is that there is a serious gap in representation from the two genders with one of them being overrepresented i.e. the male gender. Certain areas of law have reflected this aspect more than others. For instance, in international law, there are very few female representatives. Most of the time, these problems are highlighted by the fact that these state institutions have very few representatives. On top of the latter, even academic matters in international law mirror this discrepancy. Most of the time international law faculties are administered by males thus necessitating the need for affirmative action. 7 Feminist approaches to law have been particularly instrumental in depicting some traditional concepts in law. For instance, it has been shown that seemingly "hard" topics such as criminal law have lesser representation from women in comparison to their male counterparts. Additionally, 'softer' legal fields have more representation. Examples here include Family law Reproductive rights Sexual violence Harassment Domestic violence Gender relations Property law Workplace equality Whenever one visits law firms specialising in these issues, then one is likely to find that the largest number of employees there are women. On the other hand, in seemingly tough areas of law such as international law, one is likely to find that the females working there are restricted to lower posts. Through these feminist approaches, it is also possible to understand where the concept of inequality stems from. Since women are rarely given the opportunity to govern their own home i.e. their very homes subordinate them, then chances are that the same thing is likely to happen in other public spheres. This is where the 'personal is political' statement emanates from. It can therefore be argued that feminism has connected private lives with personal encounters. 8 Significance of gender as a basis for analysing social and legal issues Gender is a crucial element of analysing legal and social issues owing to the fact that there are unique experiences that can be attributed to this gender. Some researches even add that most studies on gender reveal the fact that white middle class women have been the centre of attention while the experiences of other female groups have been treated as a side show. Most social and legal issues have been analysed through the male lens as little emphasis has been given to other unique experiences. Feminism is therefore instrumental in reflecting some of the diverse experiences that most of these women have undergone and some of them largely reflect their society; these include Working class women Women of colour Lesbian women Jewish women Disabled women Older women Society usually presents certain forms of oppression that may be associated with the kind of division that one belongs to. However, gender issues are imperative in the analysis of these issues because they sometimes present double disadvantage for those who fall in two categories or they present a single disadvantage for women in general. It can therefore be asserted that there are certain commonalities that exist within the entire gender and there are also others that arise out of the differences that emanate from one's cultural context. 9 There is a certain level of collectiveness that can be assigned to some of these social or legal issues. For instance, it is a generally accepted fact that each society has its own bias. Consequently, the basic premise in feminist thought with regard to the 'personal is political' reflect on the existence of certain personal challenges that women undergo in their daily lives that must then be considered as a collective challenge within a particular society. Since these challenges can be eliminated or at least reduced, gender studies are instrumental in bringing out some of the ways in which these revolutions can be carried out. It can therefore be asserted that a large share of some of these issues is subjective in nature but they can also take on a collective nature as well. Gender is a crucial part of the analysis of legal and social issues owing to the fact that it does present an ideal way in which women can live their lives. Through gender reflections, it is possible to see certain frames of reference that societies impose upon women. Additionally, it is possible to re-examine these references and see the way people can change the way they go about handling some of these issues without regard to any kind of dilemma presented to them. There is a political nature to everyday lives that feminists assert exists and this is what can be particularly instrumental in causing change within society. 10 Barriers to conducting critical social research as highlighted by Henn et al on legal issues and whether the law can accommodate female reasoning Feminist legal scholarship challenges the traditional way of thinking in law and in any academic research process for that matter. It normally asserts that the theorist or the researcher is in fact a real person operating in a real setting. Additionally, the process of theorising and understanding needs to be treated as a material activity rather than a perspective that lacks any kind of unanalysable trait. This means that traditional notions on the field that treat this process as being alienated from people is a big challenge. Besides these, feminist legal scholarships also attempt to emphasise the importance of performing the act of knowing. They usually claim that this process is just as important are the process of knowing itself. It should also be noted that the initial aim of feminist legal scholarships was to include women as subject matters within particular researches. This means that the existing models and theories on these issues had to be challenged so as to ascertain that there was in deed adequate coverage of some of these realities. It can therefore be said that they wanted a more personal and subjective realm in the legal profession and that the manner in which this perspective was introduced had to be changed too. Most developments in feminist legal perspective centre on the recognition of the experiences of women and the forms of oppression that emanate as a result of their gender. 11 Whether feminism is a female only methodology Feminism is not restricted to the female gender alone. This is largely because the central focus of feminism is on challenging social construction of gender. Therefore the various divisions that are associated with these constructions are considered as a crucial part of the phenomenon. It should also be noted that there are a number of issues that are addressed in feminism that can affect either sexes and these include insubordination, inequality, power or domination. While a number of theories have been developed to reflect the centrality of men with regard to these issues, other disciplines in feminist thought have brought out the fact that economic and power struggles may not have been brought on by the role played by men in this regard. The central concern in feminist studies is to understand the concept of privilege and how this is constructed. In most circumstances, the latter may have nothing to do with the doings of women alone. Consequently, social constructions take greater precedence within this field owing to the fact that there are no clear or ideal definitions of personal challenges. 12 Feminism also studies oppression and inequality through the lens of other categories of individuals. Many sub branches in the field reflect upon the experiences of certain racial or ethnic minorities. Additionally, they look at the inequalities inherent in certain forms of sexual orientation or in particular economic activities such as within the corporate world or in the field of education. However, all these analyses are done against the background of the female gender. All in all, it can be asserted that feminism challenges different areas of society that are not just restricted to females alone. Significance of the public/private divides in the organisation of society for feminists Feminism as a movement has undergone rapid changes over the past three decades. During the nineteen seventies, it used to be considered as a form of activism. However, with the rise of the knowledge economy, this phenomenon rapidly transformed society's understanding of the personal as political. There have been a number of changes that were spread loosely over these past decades since feminism as a concept was accepted into the law profession. Social liberalism was the first phase and it was largely characterised by the need to use political and social movements as drivers for social change. At that time, most developed nations were undergoing changes in their economies and so had family lives. Consequently, legal feminists focused on these aspects at the time. Additionally, women began being more involved in paid employment thus bringing about different challenges for the legal profession. In this regard, many feminists began addressing the problems facing female professionals. 13 Economic liberalism was the next transformation that society underwent. At that time, there were increased choices for the consumer and certain aspects of social democracy or liberalism began being embraced. In this regard, women continue facing contradictory roles in society. Consequently, legal feminism also addressed some of these plights and necessitated the adoption of certain kinds of mechanisms that would deal with these new issues. Thereafter, the neoliberal phase began setting in. Here, the market economy was further developed with the incorporation of the term new managerialism into the equation. At that time, new political and social perspectives were introduced with particular emphasis on the third way. Consequently, it can be acclaimed that public services embraced private elements. Besides this, the issue of globalisation became very real in the world of feminists. In other words, legal feminist perspectives were now transforming into politics of the social and the personal in such arenas. It can be asserted that there were certain instances in which some of the concepts largely associated with the private sector now became public. At the beginning of the feminist legal perspective, a common issue of emphasis was on the fact that the personal is in fact political. This meant that there were certain commonalities between the private lives of women that could be considered public in nature and that these could form the basis of feminist work. It should also be noted that at the onset of this movement, great emphasis was given to the sexual and gender divisions in society as seen in earlier feminist researches. The second aspect of the divide between the private and public within society was 'the personal and the political' element. At this point, more and more women entered into the field of feminist legal scholarship and they soon realised that there was more to feminism than mere sexual divisions. It can therefore be said that the private / public discourse was now seen through the introduction of more complex phenomenon in feminism and in feminist legal scholarships as well. 14 With the continual expansion of the feminist legal perspective, the political was now considered as being personal. Here, economic liberalisation began entering into neo liberalism thus leading to the recognition of globalisation and post structural feminism. All in all, it can be argued that some of the changes that society underwent publically i.e. in the economic, social and educational realms had a huge role to play in determining the way women lived their lives privately. Consequently, these shifts were reflected in some of the work which was done in feminist legal scholarships. Society's understanding of racial, ethnic, family and cultural issues have been reflected in the latter field. This is seen by the way the personal was treated as political. Thereafter, these feminists began theorising that political nature of their society. Eventually, modernisation emerged and led to development of more complex theorising of the personal (private). Understanding of the term essentialism and why its a problem for feminists Essentialism refers to the belief that all human beings have an underlying essence about them. In other words, it refers to the process of resorting to physiological, biological and genetic explanations for the existence of human behaviour. One can therefore say that essentialism disregards the influences that cultural, psychological or sociological elements may have on a particular individual's behaviour. For instance, when one claims that men are more aggressive than women, then they are trying to claim that because this trait is determined by one's biology, then that behaviour cannot be changed in any manner. Essentialism also occurs when certain sweeping statements are made without consideration of cross cultural differences that may arise out of these generalisations. For instance, if one was to say that all men are visual, then he/she would be disregarding the differences that may arise out of certain assertions that may be inherent. Besides this, there is also another way in which one can treat the issue since it can be argued that being visual incorporates the senses which largely depend on historical or geographical concepts. 15 When individuals within the academic sphere or in academic realms opt to use a unified concept, then they may also be perceived to be engaging in essentialism. For instance if one were to refer to a white disabled women, then they would be applying the concept of essentialism. This is because the terms 'women' and 'disabled' would cause problems because they lack any form of specificity. This is especially the case because women and the disabled are very heterogeneous and that no single individual has similar experiences. The latter form of essentialism is tolerated a lot more than the latter two forms. Essentialism is indeed a problem for most feminists owing to the fact that some adherents regard it as one of the worst crime in feminism. Here they claim that women should not be subjected to this phenomenon irrespective of whether biological or social traits have been resorted to. Most of the time, many social realms have been used as the basis for essentialism but this has still brought about a lot of objection. 16 Essentialism is also a challenge within the field of feminism because of the fact that there are some adherents who believe that feminist essentialism does exist. These adherents claim that in almost all societies, women have been the recipients of oppression and that men have been the agents of dominance. In essence, the latter proponents assert that this occurrence brings out the fact that certain characteristics in society are constant. The very existence of this matter shows how feminist ideas sometimes contradict one another. Also, this shows disunity in the area of study. Whether feminism will be useful in my own research/ areas of interest A feminist perspective would definitely be an important part of my area of research owing to the fact that I have realised so many aspects of law are linked to gender based violence. In other words, there is a need for many more advocates on women issues. It is often said that a lawyer can either be two things; an agent of change or a parasite to society. It can therefore be said that sidelining female issues to the privacy of one's home is therefore failing to acknowledge the existence of these gender based problems in law and it is also failing to acknowledge the fact that change can in deed be instituted. Issues such as domestic violence have caused the country millions of dollars and there is therefore a need for lawyers to play an advocacy role to eliminate some of these issues. 17 Additionally, after the realisation that there are certain gaps that exist within society, then it is particularly important to look for ways in which one can address them. For instance, the issue of greater representation of the female gender in the legal profession is of particular interest and may go a long way in ensuring that most of these issues are handled adequately. Conclusion Feminist legal scholarship largely dwells on inequalities in society that have been perpetuated through the legal system. These studies have faced a number of barriers in research owing to traditional ways of thinking that treat feminine issues separately. Additionally, the delineation of subject matters in research and the researchers as well have caused discourses in the process of feminist legal scholarship. References Henn et al A Short Introduction to Social Research, Ch. 2 "Critical Social Research" (2006). Bartlett, K. "Feminist Legal Methods" - extract from "Feminist Jurisprudence" Ch. 14 of Freeman, M.D.A., Lloyd's Introduction to Feminist Jurisprudence, 7th ed. Charlesworth, H., Chinkin, C. and Wright, S. "Feminist Approaches to International Law" (1991) 85 Am. J of Int'l Law 613 David, M.E. "Personal and Political: Feminism, Sociology and Family Lives Stoke-on-Trent:" Trentham Books (2003 in press) MacKinnon, Catharine A. "Feminism Unmodified: Discourses on Life and Law." Cambridge, Mass.: Harvard University Press (1987) Sayer, Andrew "Essentialism, Social Constructionism, and Beyond," Sociological Review 45 : 456, (August 1997) Read More