Radical and Cultural Feminist Critiques of Law - Essay Example

Feminist jurisprudence: Radical and cultural feminist critiques of law Feminist jurisprudence criticizes the law’s omission of a bias against women’s concerns, offering its insights as a supplement and corrective. Simple inclusion, is not however, the primary goal of feminist jurisprudence. As a discipline, in England, it was developed at a much later stage, with scholars arguing that it was not taken seriously in traditional jurisprudence courses (Smart, 1991). Rather, feminist legal theorists routinely speak of challenging, subverting or transforming legal relations at their core. One cannot therefore understand feminist jurisprudence simply as the addition of missing pieces within legal education and scholarship. If one were to define feminist jurisprudence, one would find a useful beginning with Catherine MacKinnon’s definition: ‘Feminist jurisprudence is an examination of the relationship between law and society from the point of view of all women’. The following article will focus primarily on the feminist critiques of law, dividing perceptions and study by the cultural and the radical feminists-juxtapositioning one vis-à-vis the other and in this process coming up with a rational explanation of the how feminism has understood modern western law. Anglo-American law-like Latin one of its ancestor languages-was long spoken and written-with totally negligible exceptions by males (Baier, 1994). Men wrote the constitutions enacted the laws in pursuance thereof, argued the vases challenging the laws, wrote the opinions which disposes of the vases and criticized the opinions which settled the vases which challenged the laws which refereed to the constitutions which men wrote. Law’ heavenly chorus has not sung only with a strong upper class accent but also in a low pitch. The idea that law is male is the core of feminist jurisprudence. Baier (1985, 1986, and 1994) responded to the call for a clearer ethical theory that incorporates the moral perspectives of both men and women. Central to her concept is the idea of trust as the bond in human relationships. As Baier (1985) explained, trust rather than control is embedded in the caring relationships. Trust is defined as the “reliance on others’ competence and willingness to look after, rather than harm, things one cares about which are entrusted to their care” (p. 59). This raises the issue of symmetric and asymmetric relationships. For example, reason-guided justice perspectives emphasize symmetric relationships among equals, who determine the rules and enforce sanctions on those who break them. However, Baier noted that most trust relationships are asymmetrical, with unequal responsibilities borne by each party. Radical feminism, also known as dominance is probably the most caricatured of all variations of feminist though. Its roots lie partly in the writings of the 19th century abolitionist Sarah Grimke (1837) and it is often linked with Marxist thought as well (MacKinnon, 1983). The most basic premise of radical feminism is that evolution of women’s inequality in the public and private spheres is tied to the physical power that men have historically had over them-hence use of the word dominance-and the corresponding threat of violence, including sexual violence that this power connotes. A radical feminist approach to law questions whether the difference voice touted by the cultural feminist camp is really based on biology. Recalling Sarah Gimke’s famous metaphor, radical feminist Catherine MacKInnon in 1987 wrote, “Take your foot off our necks, then we will hear in what tongue women speak”. Radical feminism claims that the law and all other cultural social and political institutions perpetrate male dominance by simultaneously and paradoxically ignoring its existence and privileging it. It contends that both equality theory and difference theory accept the concept of a male ‘norm’ and attempt to work around that norm but not challenge it. The claim that patriarchy-men’s favored position at home and at the workplace-is achieved through direct or covert coercion as important implications, to accomplish true equality for women radical feminism asserts, male privileges must be eradicated from cultural, social and political institutions. Only if these institutions are completely restructured to account for women, however they may be defined biologically, and socially can true gender equality be attained. Remedial actions that achieve this outcome are permissible, even if they allow women access to ‘rights’ that are not available to men. Radical feminist jurisprudence underlies the concept that women subjected to a barrage of sexual innuendo at the workplace are experiencing employment discrimination because this creates a hostile environment in which women are devalued and marginalized, and from which many women will flee. The theory that a hostile environment equals sexual harassment equals employment discrimination without the presence of some quid pro quo no longer seems controversial. Radical Feminist jurisprudence also holds that the value of achieving equality for women has the same status as the need to protect other civil liberties such as freedom of speech and expression; thus they content the free speech rights of pornographers are not absolute and must be balanced against the empirical likelihood that certain kinds of pornography might incite or encourage violence against women and their general subjugation at home and at work. Under this approach, pornography can be restricted or even banned; moreover women ought to have civil remedies against those who promote violent demeaning or hateful images of women as a remedy for the harm it cases individual women and women as a class. The pragmatic goal of radical feminism is to effect legislative change in the direction of eliminating patriarchy and redistributing power to women in both public and private spheres. According to the radical feminist thought, jurisprudence as traditionally practices (or practiced by men) considers overarching questions usually ignored or assumed by scholars in narrow doctrinal fields, it is inclusive of studies of the nature if law and legal reasoning sources of legal obligation and legitimacy of legal systems and the relationship between law and the social structure. Barnett (1998) quotes Janet Rifkin’s article ‘Toward a theory of law and patriarchy’, where one finds a clear quantification of the fact that law plays a primary and significant role in social order states Rifkin and is powerful as both a symbol and a vehicle for male authority. According to Barnett, Rifkin’s is the most oft-quoted article in the Harvard Women’s law journal, given the fact that this piece of writing tends to challenge traditional understandings of the way law functions within and in relation to social institutions despite its clear focus on the traditional questions of jurisprudence. The object of this essay is to explore the central role played by the ‘ethic of care’ in debates within and beyond feminist legal theory (Drakopoulou, 2000). The author claims that the ethic of care has attracted feminist legal scholars in particular, as a means of resolving the theoretical, political and strategic difficulties to which the perceived ‘crisis of subjectivity’ in feminist theory has given rise. She argues that feminist legal scholars are peculiarly placed in relation to this crisis because of their reliance on the social ‘woman’ whose interests are the predominant concern of feminist legal engagement. With the problematisation of subjectivity, the object of feminist legal attention disappears and it is in attempts to deflect the negative political consequences of this that the ethic of care has been invoked, the author argues, unsuccessfully. The essay concludes with suggestions as to how the feminist project in law might proceed in the wake of the crisis of subjectivity and the failure of the ethic of care to resolve it. One need only take a look at the issue of pornography, to understand the fact that modern law, which treats pornography as part of the freedom of expression is incapable of upholding the rights and preserving the dignity of women. Pornography has been so thickly glossed over with the patins of chic these days in the name of verbal freedom and sophistications that important distinctions between freedom of political expression (a democratic necessity), honest sex education for children (a social good) and ugly smut (the deliberate devaluation of the role of women though obscene distorted depictions) have been hopelessly confused…but a woman’s perspective demands a fresh appraisal…Pornography, like rape, is a male invention, designed to dehumanize women, to reduce the female to an object of sexual access, and not to free sensuality from moralistic or paternal inhibitions (Brownmiller, 1975). Traditional notions of rape and rape victims spanned the notion of the western white pristine woman, who would rather die than surrender her virtue-it had no bearing with issues of date rape, marital rape or even abuse. Rape was defined in limited terms which excluded everything other than penile vaginal penetration. There is a need, say the feminists to link pornography and prostitution with rape-the most prominent response to this feminist critique was the attempt to reform criminal rape law-earlier American courts required that there be utmost resistance in order to demonstrate non-consent in rape prosecutions-a notion that was not formed by a realistic vie of a women’s relatively powerless position in society nor was this formed on the basis of evaluation of empirical data. Where radical feminists were concerned, ;liberal reforms of rape law, were wrong on multiple levels-in the most abstract, radical feminists are concerned with the power disparity between men and women and believe that women’s subordinate position is not solely a result of biased government actions but also a result of greater economic and social power exerted by men in the private sphere, given ten fact that liberalism was focused primarily on the reform of government action , radical feminists charged that these reforms would be incapable on bringing about any significant changes in society. According to them the singular focus on rape as a manifestation of male power over female sexuality tends to eclipse the use of rape as a weapon of racial terror-according to their critique, rape statutes generally do not reflect male control over female sexuality but white male regulation of white female sexuality. Historically, there has been absolutely no institutional effort to regulate black chastity-the critique itself then serves to maintain the interconnectedness of sexism with racism. In understanding the feminist critique of rape one would have to ponder over the relationship between consent and coercion. Consent is supposed to be women’s form of control over intercourse, different from but equal to the custom of male initiative. The law of rape presents consent as free exercise of sexual choice under conditions of equality of power without exposing the underlying structure of constraint and disparity. The law of rape divides women into spheres of consent according to indices of relationship to men. Which category of presented consent a woman is in depends upon who she is to who a man wants her not what she says or does. These categories then tell men who they can legally sleep with, who is open season and who is off limits-daughters may not consent; whores and wives with whom no sex is proscribed are assumed to, and cannot but assent (Taylor, Bush and Munro, 1999). Actual consent or non-consent then, far less actual desire are completely irrelevant. If rape laws existed to enforce women’s control over access to their sexuality, as the consent defense implies, no would mean no, marital rape would not be a widespread exception and it would not be effectively legal to rape a prostitute. They further assert that it is a mistake to characterize rape a s violence rather than sexualized violence. Rape is different and more serious than assault. To label rape as mere assault denies the reality of what rape is, as opposed to other physical assaults-rape is an objectification and denial of the basic humanity of the victim. There are also questions raised about the difference between stranger and non-stranger rapes. Cultural feminists and law Cultural feminist jurisprudence contends that biological and culturally constructed differences between women and men will inevitably preclude the ability of a pre liberal feminist approach to correct inequality and calls for accommodation of these differences in both public and private life (Rhode, 1989). The failure of liberal feminism to account for at a minimum, the inherent biological differences was starkly captured in Gedulig v Aiello, in which the United States, Supreme Court, held that a state disability compensation scheme that covered virtually all disabilities except those relating to pregnancy was not discriminatory because it did not distinguish between men and women both rather pregnancy women and non pregnant persons. Modern cultural feminism embraces the 29th century construct of separate spheres, wherein the domestic sphere of family within which women predominantly operate and the business sphere within which men operate-but claims that the work women do, within the domestic sphere should be valued to the same extent as men do outside it. Cultural feminists argue that the problems with respect to the social constructs of gender are that they have been created by men in order to suit their purposes of keeping the women outside of the power arena-this is inclusive, but of politics and of law. Hence, the very basis of cultural feminism is aimed at the separation of the traits of sex from those of gender. Sex is natural-it is biological and it is acceptable. Sex would therefore refer to the biological differences that exist between men and women. Gender on the other hand is a social construct. The argument therefore is that there is no difference in the traits that men and women posses with respect to personality development and competence. Theories about men being less emotional and women given highly to emotions, so much so that they are incapable of handling tasks requiring objective thought and tough decision making are therefore part of this social gender construct. The idea therefore is that sex is nature and gender is nurture. Women are taught sociologically to be gentle and homemakers while the man is stereotypically supposed to be the head of the household and put the bread on the table. The place of the feminine gender is at home with the kids or in the performance of soft arts like teachers, ballad dancers (Hill, 2001). This kind of a construct is not a derivative of nature but that of the manner in which women are brought up vis-à-vis the man. The deification does not work in a singular direction either. Interestingly enough the cultural stereotype demands that men be “tough guys” interested in sport and beer. Men who do not confirm to this stereotype are often labeled gay, homos or queer.   If one were to debate the perception of gender roles, one would encounter contradictions and the problems of relative standards at every nook of the issue. On the surface, it would seem that Britain accepted the nature aspect of the nature/nurture issue thereby manifesting equality for women at most institutions. This has in fact developed over the past 60 years since the experience of the world war where the now fabled participation of women in running the country, managing industry, and an overall participation in the armed forces of the country. Although it is true that the numbers of two member-earning households increased remarkably after the war, primarily women went back to being homemakers. The situation has changed since then in as much as the fact that Britain is one of the few countries in the world today that endorses an equal footing in the overall workforce. The problem here however is with respect to the levels that women attain. Thus, women who become pregnant, cannot be fired die to pregnancy, instead the importance of child bearing should be formally acknowledged and accommodated through legal protections for the condition of pregnancy that reflect the value of societies purportedly on child bearing. Ultimately, cultural feminist legal theory found its way intoi laws and workplace policies that treat pregnancy as an illness for purposes of accounting for sick leave, maternity and eventually paternity leave policies and caregiver statutes that mandate employers to provide unpaid time off work to provide care for an ailing family members, some of cultural feminism’s most visionary objectives-implementation of comparable with doctrines in the workplace for example-were not accomplished, but in some respects the cultural account of feminist theory should be credited with effecting significant positive change in the direction of equality in many areas of the public spheres. It is a tenet of feminist scholarship that the female ethic of care and the male ethic of justice are interdependent. Feminists such as Kathy Fergusson argue that men are able to sustain an identity of separation and independence, and a morality that stresses autonomy and rights, in part because women are weaving the web of sociality on which men depend even as they devalue it in their theories and institutions. Feminist critics of liberalism protest that it is ideas of the individual’s relation to the state that presupposes women’s assignment to the private sphere. The ethic of care is forced on women, whether or not they would choose it. Men may ‘do justice’ because women must ‘do care’. Privileged people-men-may get to choose. They choose justice, rights, autonomy, and separation over care, nurturance, and connection. Subjugated people-women-have duties assigned to them. They are assigned care. If justice then is a choice and care is a duty then there is no way one gets a suggestion from this, that justice is by any means more valuable than care, or even for that matter than feminist theory must abandon care and embrace justice. Cultural feminists question the myth of male innocence and female guilt in rape justifications, especially in their campaign against date rape, emphasizing that it is the man who rapes and it is he who is responsible for what he does or does not do with his penis (Villmoare, 1998). They urge the development of a more positive account of heterosexuality because without it feminism would continue to have difficulty in the maintenance of a distinction between rape and intercourse, between a profoundly damaging experience and an incredibly pleasurable one. These feminists tend to explore the difference between the formulations of sexual violence and sexual pleasure. As part of the long terms struggle for understanding and transformation, we need to examine our own experiences of sexuality, they say, emphasizing on the need to learn the difference in the manner in which men and women tend to communicate and interact for understanding the basics of rape. In conclusion, one could draw many basic forms of differences in the manner in which radical and cultural feminists approach law and law related issues-innate to the manner in which they approach the question of feminism and the rights of women. The similarity in theory, however stems from the fact that at least where law is concerned. the two critiques tend to display the fact that modern western law is largely incapable of dealing with the issues that relate to women, and their rights. This stems from the basic fact that the idea of women’s rights and an understanding of their issues is the understanding of women’s issues from the perspective of a man, and not the manner in which women would themselves perceive things. Where radical feminism is concerned, the basic idea of sexual injustice works on the premise that women get fucked and men tend to fuck while for cultural feminists, women are homemakers while men are the breadwinners. Both these notions function on the back of the basic premise that there is a power gap between women and men-this is evident doubly in the case of law, wherein, what one finds is a simplistic notion of women’s issues and their solutions at best. Reference: Taylor, B., Rush, S. and Munro R. J. (eds) Feminist Jurisprudence, Women and the Law: Critical Essays, Research Agenda and Bibliography, Rothman, Littleton, Colorado, 1999. Villmoare, A. "Review Section Symposium Feminist Jurisprudence; Feminist Jurisprudence and Political Vision", (1999) Law and Social Inquiry, Vol. 24, 443. Baer, J. A. Our Lives Before the Law: Constructing a Feminist Jurisprudence, Princeton University Press, Princeton, N.J., 1999.  Barnett, H. (ed) Sourcebook on Feminist Jurisprudence, London, Cavendish Publishing, 1997. Barnett, H. Introduction to Feminist Jurisprudence, London, Cavendish Publishing, 1998. Drakopoulou, M. "The Ethic of Care, Female Subjectivity and Feminist Legal Scholarship", (2000) Feminist Legal Studies, 109. Rhode, D. L. Justice and Gender: Sex Discrimination and the Law, Cambridge MA, Harvard University Press, 1989. Ceci S J and Williams W M, 1999, The nature Nurture Debate: Essential Readings, pub, Wiley Books, pp53-58  Klasen S, and Wink C, 2002, A Turning Point in Gender Bias in Mortality? pub, Population and Development Review, Vol.28 No.2 pp285–312  Rhode, D. L. Justice and Gender: Sex Discrimination and the Law, Cambridge MA, Harvard University Press, 1989. Smart, C. "Feminist Jurisprudence", in P. Fitzpatrick (ed.) Dangerous Supplements, Pluto Press, 1991, pp. 133-158. Read More