Law and Legal Feminism - Research Paper Example

LAW AND LEGAL FEMINISM INTRODUCTION Law and women represents the two realms of human life - the public sphere and the private sphere. Law is presumed to be at work in the public sphere. This sphere which is characterized by friendship, action, discourse and equality (Arendt 1998) is basically dominated by men. On the other hand, in the private sphere, that which is hidden, and hierarchical, we find women. However, even in this sphere with which society has relegated for women, men still dominates. As such, women’s voice for a long period in the story of humanity has not been heard. In fact, it has been consigned in oblivion, obscured and forced into silence. Fortunately, things and stories are slowly changing. The feminist critique in our contemporary period has paved the way for the story of humanity to be slowly transformed and become more inclusive of the other half of the population. And with legal feminism, women’s voice is slowly being given venue with which it can be heard within the legal system. It is in this line of development that this paper intends to look at the value to the study of law the lens or framework of legal feminism. Being such, I am hoping that this paper may contribute to the further understanding of the dynamic interaction of law, women and feminism. VALUE OF LEGAL FEMINISM Legal feminism holds a very significant role or value in law. This I claim due to the following reasons: First, the value of having legal feminism within law is that feminism has deconstructed the way with which we value and understand law itself. Prior to the presence of the feminist critique, law has always been perceived as deductive, analytical and adhering to the abstract concepts of justice and fairness. However, in the process of keeping up with these ideals, law has removed and abstracted from its discourse the actual presence of the human characters in cases and in law itself. This long tradition is contended as understandable and acceptable since it is argued and maintained that law in itself should be removed from any emotional or affective underpinnings as it is necessary for the proper distribution of justice and fairness. At some point, this may seem plausible but if one will look into the life stories involve in each cases that are being tried and heard in the court, it speaks of human persons having relations in one form or another and in some degrees with others. And in highlighting the vital role of relationships which are intrinsic in all cases, it provides us with one of the most important reasons why we should study and understand law utilizing the legal feminist framework – relational aspect of the law. The relational aspect of the law which feminist criticism has injected into the current practice of the law is derived from the very important work of Carol Gilligan (1982) In a Different Voice In her book, she has clearly shown that there is a glaring need to fill in the humongous lack of human relations, of interconnectedness, of care, of context in almost all discourse in the public realm including that of law. Her discussion regarding the moral development of women that yields a different type of approach – an approach that recognizes relations, care, and context- “has created a new vision of the legal system” (Weisberg 1993, p 6). And this new vision is a law that is not abstracted from the concrete existence of persons but a law that is recognizant and responsive to the importance of the relations, context, care and interconnectedness of human persons whose life are greatly affected and influence by law itself. As such there is a challenge raised by Bender (1993) The recognition that we are all interdependent and connected and that we are by nature social beings who must interact with one another should lead us to judge conduct as tortuous when it does not evidence responsible care or concern for anothers safety, welfare, or health. Tort law should begin with a premise of responsibility rather than rights, or interconnectedness rather than separation, and a priority of safety rather than profit or efficiency. The masculine voice of rights, autonomy, and abstraction has led to a standard that protects efficiency and profit; the feminine voice can design a tort system that encourages behavior that is caring about others safety and responsive to others needs or hurts, and that attends to human contexts and consequences. The second value of legal feminism in law is the paradigm shift that feminist framework offers to law. Via feminism, law is removed from its pursuit of Objective Truth and Reality which again is ideal, virtual and abstract. "Feminist analysis begins with the principle that objective reality is a myth."(Scales 1993, p 42) It removes law from the abstracted reality and put flesh on it in such a way that law starts to listen and respond to the narrative of human persons whose life story is enmeshed in the story of law. This critique of feminism is powerful as it raises a different demand from the law - a demand that law should be perceived as “triangular relation among text, interpreter and audience” (Stone Peters 2008, p181) .This is a very difficult task. Because as legal feminism raises its point against the law, adherents of traditional law attacks legal feminism on the premise of opening law to relativism and nominalism. And this is valid argument because “Feminism does not claim to be objective, because objectivity is the basis for inequality. Feminism is not abstract, because abstraction when institutionalized shields the status quo from critique. Feminism in result-oriented. It is vitally concerned with the oblivion fostered by lawyers belief that process is what matters." (Scales 1993, p 45) Being such, legal feminism is hurdling a herculean task as it challenges the traditional conception and methodology of law. Furthermore, in utilizing the paradigm shift that legal feminism is presenting to law, it challenges law towards ‘gender neutrality’. Laws provide us with concrete examples where women are treated as lower than that of men. For example, in some laws, if a man is caught having sexual affair while still married he is charged with polygamy. While a woman who is caught having sexual affair while still married is charged with adultery. And we know that the attribution of adultery carries a social stigma. Another example is “by declining to punish a man for inflicting injuries on his wife, for example, the law implies she is his property and he is free to control her as he sees fit. Womens work is discredited when the law refuses to enforce the mans obligation to support his wife, since it implies she makes no contribution worthy of support. . . .These are important messages, for denying womens humanity and the value of her traditional work” (Taub & Schneider 1993, p 13) Thus, though legal feminism criticizes law’s pursuit of objective truth it does not mean legal feminism neglects or denigrates laws pursuit of truth. What legal feminism is criticizing is laws ardent pursuit of objective truth, a truth that is remove from the realm of human discourse. Instead, legal feminism is bringing up the idea that truth that should be pursued is the truth that recognizes the context and story of concrete individual persons. In other words, when you look at the case involved in law, it is in fact a narrative, a story of the life of concrete individual person whose context and relations plays an important role in the understanding of his/her case. The third important reason why there is a an important value in injecting legal feminism in law is because through the feminist lens the law is deconstructed in such a way that women’s integral and vital role in completing the story of humanity is achieved. With legal feminism, law becomes the arena where the means for women’s repression, subordination and oppression are challenged and removed. And this is of primary importance since “the law plays a powerful role, though certainly not an exclusive role in shaping and maintaining womens subordination." (Taub & Schneider 1993, p 13) Being such, via legal feminist articulations within law itself, it has been shown how laws have been used as a means in controlling, maintaining and perpetuating female/women subordination in the society. Law’s nature of double standard in the society is made visible. For example, the exclusion of women from economic practices has been justified via the legal system. An instance of this is "Women have likewise been excluded from full participation in the economy. Under English common law, not only were they barred from certain professions (such as law), but, once married, they were reduced to legal nonentities unable to sell, sue, or contract without the approval of their husbands or other male relatives." (Taub & Schneider 1993, p 10) With the existence of legal feminism within law, there is now the presence of a strong women’s voice in law. With the lens of feminisms, law is questioned, challenged and deconstructed. This reality is of a significant function as through the utilization of legal feminism, law is opened up, it becomes an arena, a venue for people who are advocating for women’s authentic inclusion in the society. Women’s voices can be heard legally. But it is not only that. With the actual participation of lawyers advocating legal feminism, the chance to change law itself and its interpretation becomes a concrete reality for women. And that with this development, law being the venue that continues and perpetuates the oppression and subordination of women is now slowly being put to halt and its nature slowly changed. Moreover, legal feminism has a primary significance in law as it presents the discriminatory nature of law which is always concealed since the underlying concept of law itself is that it is that which promotes justice, fairness and equality among and between persons regardless of their gender and sex. But then, this is again, not fully true. There are laws which in themselves are discriminatory of women thus perpetuating women’s repression and oppression. Take for example in cases of rape. Prior to feminist critique, women have always been blamed if they are raped because it is used as an argument that there is something women’s nature (being a woman) that they tend to act as if they are meant to seduced men. In other words, if a woman is raped it is because she puts it upon herself. Unfortunately, this reality is still true. In a study conducted by Jewkes et al (2005) in South Africa and Namibia cases of child rape “is represented as an overwhelming female problem, with conspicuous feminization of blame” (p 1819). This suggests that the vulnerability of women and child is deeply rooted in a gendered hierarchy and that rape becomes the communication and language of power relations between men and women, between men and children. Although there are socio-cultural and economic factors that worsens the situation of rape and child rape in South Africa and Namibia, there is a consensus that these abuses “stem from widespread perception of the legitimacy of men exercising power over women” (Jewkes et al 2005, p 1819). On the other hand, the meaning of rape in western society is shaped by the understanding of the ‘phallic’ penis, which is imbued with meanings of power over the passive submissive vagina (Smart, 1996 qtd in Winter 2002). These perceptions or constructions become entwined with understandings of gender, so that femaleness is inseparable from passive femininity. Yet examinations of the construction of the sexed body have revealed, for example, that understandings of the penis in rape as phallic and powerful are not universal, but are culturally specific (Helliwell, 2000 qtd in Winter 2002). I have chosen this scenario to highlight the fact that the important role of legal feminism is not only bounded within the legal system but that any new interpretations of the law provided by people that advocates the legal feminism frameworks will shatter the hold of gendered, patriarchal hierarchy in law and society and it will be an opening for the emancipation for all women. And this is what is happening in some parts of the world. Things are slowly changing. In cases of rape, the accused has now the burden to disprove the accusation and that he/she can no longer hide from the argument that women are to be blamed. Although, I think that in the socio-cultural context is not completely changed, but at least in the law the idea that women are the temptress is removed. That rape victims are not to be blamed for what had happened to them is acknowledged. And this is a marked change as it removes the stigma or guilt from the victim herself and points to the perpetrator of the act as the one who should be guilty or to be blamed. The fourth value that legal feminism offers to law is the re-conceptualization of our notion of justice, freedom and equality. The traditional masculine legal system which is built on the foundation of liberalism which strongly supports the notion that an individual is autonomous and that society has to protect the right of each autonomous individual person in the pursuit of their own good. Thus, under “liberal legalism - autonomy - and what the individual truly subjectively desires, which is to establish a true connection with the other. Similarly, there is a vast gap between the "official harm" of liberal legalism - annihilation by the other - and what the individual subjectively dreads, which is not annihilation by him, but isolation and alienation from him” (West 1993, p 77) Being such, within this framework of law – liberal legalism- we can impugned that freedom is freedom from interference both other persons and the State. Justice and equality can be understood as the fair distribution of good and opportunities among persons who are autonomous. Being such, for men, the moral imperative appears rather as an injunction to respect the rights of others and thus to protect from interference the rights to life and self-fulfillment. (Gilligan 1998) Furthermore, under this particular structure the question of responsibility becomes a question of balancing and of denial. Balancing since between two autonomous individual whose rights are deemed to be equal are at contesting the same right. And denial because since the persons are autonomous, they should not be held responsible for actions which they deemed do not contribute to their well being. This line of thinking is technically rooted on liberalist ideals from Hobbes down to Rawls and Dworkin. However, and as I have noted earlier this framework leads to isolation and alienation. What is the legal feminist solution to this predicament? Going back to the contribution of Carol Gilligan, legal feminists have provided the argument that there is legitimacy and moral ascendency in recognizing the vital role of care, trust, relationships and context in the creation, interpretation and implementation of laws. The approach of care, relationship, trust and context, is according to Gilligan (1998), the door with which women address conflicting moral and ethical issues. And if these perspectives are applied in our understanding, creation, interpretation and implementation of the law, the question of responsibility becomes clear. Since, if the approach of care, relation, context, intimacy and trust are incorporated in the law, there now exist an ontological argument why person A or person B is responsible for act since there exist between them a relation or connection and that particular relation becomes the context wherein apprehension of care or trust has been given or has been abused. In this sense, question of responsibility becomes not just a legal question but in fact becomes an ethical and moral question as it plays an integral role in human relations, human existence. Legal feminism is the one that injected in law the importance of recognizing and applying concepts of relation and care in law. It is the strand of feminism that directly questions the rest of the liberal tradition as applied in the legal system which describes the natural human predicament as one of natural equality and mutual antagonism, and describes human beings as inevitably separate and mutually self-interested. Thus, legal feminism has shaken the very fundamental framework of law by questioning the very foundation of law itself – autonomy, freedom, equality and justice. In light of this critique of legal feminism, there is a call on the part of those advocating legal feminism for the legal system to put upon itself in becoming “a positive force in encouraging and improving of our social relations, rather than reinforcing our divisions, disparities of power, and isolation. (Bender 1993, p 65) The fifth reason why legal feminism is valuable in the study of law is because legal feminism questions the concept of subject and identity within the discourse of law. There is a particular need for a clear elucidation of these two concepts since subjectivity and identity are considered as essential in law for the understanding of what a person is. The ascertaining of what a person is necessary in the assignment of rights, duties and responsibilities within the law. Legal feminism questions the very ideal with which traditional law answers the question what is a person. Since, in the male dominated legal theory a person is normally under one who is rational and capable of making decisions that he sees fit to his life plans or goal. This definition is basically patterned after the liberal conception of what a person is. However, if we are going to look at it from the historical perspective, this definition is excluding women from its view. Since, women from the time of Aristotle has never been considered as rational but only emotional. In fact I have seen a book which is written during the 17th century and the title is Women are not Human Beings. Of course, the author is anonymous. But then, the point is, with this particular perspective of what a person is, law in itself becomes a tool for oppression and subordination of women. In lieu with this, legal feminism questions the very essence and logic behind the answer to the question what is a person. According to Davies (2007), within legal feminism, there are different positions have been taken by scholars in order to show the fault and lack of merit of the male legal theories’ perception of a person. The first is the liberal position which aims for equality with men and the argument used is that all human beings regardless of sex and gender share the same human essence. The second position is a radical position which roots its claim from radical feminism’s rallying cry - the “personal is political”. And as such it seeks to redefine the concept of person from the view that there is a systematic degradation of women in all facets of her life. And the last position taken by legal feminist scholars is the difference position which according to Davies (2007) seeks to bridge the liberal position and radical position in such a way that it points to the idea that there is a structural and societal aspect in the repression and oppression of women. Davies (2007) claims that despite the difference in approach, and perhaps even in ideology, we can say that the diversity or differing approach to the question of person, subject and identity, points to the varied experience of women but at the same time all three strands agree that there is an oppression of women within law itself and that this needs to be address and changed. To make this more concrete, Winter (2002) in her article sited how the judge who becomes the mirror or seat of justice, of equality and fairness in the court is in fact influenced by gender bracketing or framing of women. In the article Winter (2002) utilized two trials- the trial of Myra Hindley and the trial of Rose West. According to Winter (2002) the in both cases the judge use the ‘mother and whore image’ and the submissive and passive nature(?) of women. In the Hindley trial, the judge downplays her participation in the crime. The “ judge dwelled at length on her total dependence on and trust of Brady… He also accepts the defense’s construction of her subordination… The judge does not exploit evidence pertaining to her sexuality which might undermine the motion of her female sexed body. It may even be said that it is his perception and description of her as female that leads him to accept her complicity. The judge appears to believe that her conviction will be secured by the evidence brought by the prosecution, and he does not seek to embellish or further construct her role.” (p 357 – 358) While in the Rose West trial, the “In emphasizing, exploiting and condemning Rose West’s sexuality … the judge influences the jury toward conviction. Furthermore, the heavy focus on Rose West’s sexuality, the implicit condemnation of not only violent sexuality but also lesbian or bisexual sexuality, and its use to incite prejudice against Rose West shores up the norm of heterosexuality, and thus implicitly the categories of male and female. In turn Rose West is represented as not a woman at all.” ( p 363) What I intend to claim with this is the idea that as facts in the court are presented are presented in their most manipulated form. That manipulated version may also embody a very particular notion of femininity and, perhaps more importantly for the women defendants, what will become an enduring and authoritative record of their actions as women. And this is the reality of women that via legal feminism can be erased. Finally, the last value of legal feminism in law is that legal feminism shows concretely in actual experience the union of theory and practice – praxis. They continue to elaborate and create theories that will address the women question even if they are very much aware that in the mainstream of the legal system,” In this as in other settings, it is already a disadvantage to be a woman. But to be a woman who teaches and writes as a woman, expressing womens concerns, is to be almost certainly beyond the pale." (Dalton 1993, p 37) The value of legal feminism in law is ,beyond doubt, one of the most important means with which women may unshackle the chain of oppression and subordination that they continue to experience in one form or another in a patriarchal, gendered and hierarchical society. CONCLUSION Legal feminism provides opens the arena with which women’s stories, narratives and voice can be heard and listened to within the legal system. It is one strand of feminism which shakes the patriarchal society at its core – its laws. Being such, legal feminism is of esteemed value in the study of law for the following reasons. First, legal feminism deconstructs the nature of law – from deductive, analytic and abstracted nature of law to relational aspects of the nature of the law. Second, it provides a paradigm shift. Third, it deconstruct law in such a way that . Fourth, offers a new interpretation or re-conceptualization of the concepts freedom, justice and equality. Fifth, it questions the concepts of subject and identity as understood in the question what is a person. And finally, sixth, legal feminism shows the reality of praxis. In the end, the struggle for women’s emancipation is far from over. But the horizon of authentic freedom, justice and equality for all is no longer a dream. REFERENCE Arendt, Hannah. (1998) The human condition 2nd ed. Chicago: University of Chicago Press. Bender, Leslie. (1993). A lawyers primer on feminist theory and tort. In Feminist legal theory: Foundations. Ed by Kelly D. Weisberg. Philadelphia: Temple University Press. Dalton, Clare. ( 1993). Where we stand: Observations on the situation of feminist legal thought. In Feminist legal theory: Foundations. Ed by Kelly D. Weisberg. Philadelphia: Temple University Press. Davies, Margaret. (2007) Unity and diversity in feminist legal theory. Philosophy Compass, Vol. 2, Iss 4, pp 650 – 664. Gilligan, Carol. (1982). In A Different Voice. Massachusetts: Harvard University Press. Jewkes, Rachel., Penn-Kekana, Loveday & Rose-Junis, Hetty. (2005) “ ‘If they rape me, I can’t blame them’: Reflections on gender in the social context of child rape in South Africa and Namibia”. Social Science & Medicine. 61, p 1809 – 1820. Scales, Ann C. (1993). The emergence of feminist jurisprudence: An Essay. In Feminist legal theory: Foundations. Ed by Kelly D. Weisberg. Philadelphia: Temple University Press. Stone Peters, Julie. (2008). Legal performance: Good and bad. Law, Culture and the Humanities. 4, p 179 - . Taub, Nadine & Schneider, Elizabeth M. (1993) Womens subordination and the role of law. In Feminist legal theory: Foundations. Ed by Kelly D. Weisberg. Philadelphia: Temple University Press. Weisberg, Kelly D. Ed. (1993). Feminist legal theory: Foundations. Philadelphia: Temple University Press. West, Robin. (1993). Jurisprudence and gender. In Feminist legal theory: Foundations. Ed by Kelly D. Weisberg. Philadelphia: Temple University Press. Winter, Jo. (2002). The Truth Will Out? The Role of Judicial Advocacy and Gender in Verdict Construction. Social Legal Studies. 11; 343. Read More