Feminist Legal and Social Theory - Essay Example

Feminist legal and social theory has the potential completely to revolutionize our understanding of the character and function of law in contemporary western societies" Critically discuss. The basics of feminism in terms of jurisdictional theory stand at the basis of criticisms that characterises law and its exclusion of concerns that typify the issues of women. It tends to offer insights in terms of it acting as a supplement while being corrective at the same time. According to the long standing aims of feminist jurisprudence, the idea is not aimed at simple inclusion. In fact as a discipline, the very discipline was developed only in the post world war era, which means a development much later vis-à-vis the traditional thought of feminism1. 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’2. The following article will focus primarily on the feminist critiques of law as provided by Catherine MacKinnon in her direct capacity as an authority on feminist jurisprudence along with the works of Carol Gilligan, a writer on feminism, known primarily for her works on the culture if the feminine and the ethics of care. The essay will link, the theory of the ethics of care as propounded by Gilligan to the critiques of MacKinnon’s work, outlining therefore a theory of feminist jurisprudence3. The idea will be to keep in mind these theories, and thereby come up with an argument on the question of whether or not it is correct for one to assume that if applied, the theories of feminist jurisprudence would change the very fundamentals of modern western law. this, the following essay will attempt to debate based on perceptions 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 law4.   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 wrote5. 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. There are those feminists that have claimed over the years that the ethics of care have to be looked upon as a means through which one could arrive at a resolution of the hypothetical, political and strategic difficulties to which the perceived ‘crisis of subjectivity’ in feminist theory has given rise6 When one speaks of revolutionizing law, it is automatically essential that one is able to outline, first and foremost the tenets of existing law. modern western law, is on the face of it asexual and devoid of chauvinism. This is where the problem exists, according to feminist jurisprudence in light of the fact that where women are concerned, modern western law is remarkably inadept at dealing with the specifications that characterize crime associated with women. Keeping this in mind, the idea is that if law were to tailor itself to the specifications of chauvinism inherent in generalization between sexes, then law in its present form would have to undergo mass scale overhaul. Modern feminists in fact tend to argue that the legal scholars of feminism are in an extraordinary situation, wherein the crisis is concerned, given the fact that they have an extraordinary reliance on the concept of the social ‘woman’ whose interests are the predominant concern of feminist legal engagement7. The following analysis keeping, the above contextualization of law and gender in mind, will analyze the impact modern thought on feminist jurisprudence could have on modern western tenets of law. The hypothesis that this paper seeks to further is that feminist jurisprudence has the ability to transform law from its present form, which while apparently seeking to further the principle of equality works on a subtle manipulation, which ends up promoting bigotry. According to Gilligan, “listening to women’s voices clarified the ethics of care not because care is essentially associated with women or part of women’s nature but because women for a combination of psychological and political reasons voiced reasons voiced relational realities that were otherwise unspoken or dismissed as inconsequential”8. Gilligan in the measurement of law and in the examination of its intricate details tended to address a moral crisis, in which exclusion of the voice of women was systematically perpetuated by a research agenda. Following, a discussion of the historical context that framed Gilligan’s writings, the essay will discuss the distinct moralistic overtones of the feminist writings on law, that translate into the extension of feminist jurisprudence past the barricades of jurisdictional theory well, into the domain of the very function of law in contemporary western societies. Baier (1985, 1986, and 1994) responded to the call for a clearer ethical theory that incorporates the moral perspectives of both men and women9. 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”. 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.  Gilligan in her writings that tend to form the very crust of feminist jurisprudence tends to focus on the difference between a patriarchal; and a relational voice. Her work marks a paradigm shift in psychology, wherein, “voice, relationship, resistance and women become central rather than peripheral in this reframing of the human world”10. Gilligan’s work generated discussion among specialists that were interested the moral development theory and generalists who identify with an ethics of care. Gilligan (1995) stresses on the fact that because women have traditionally been focused on the needs of others they have developed an ethics of care that stresses the importance of creating and sustaining a strong network of human relationships11. In contrast, men, because they have traditionally focused on competing in the public world where people often are tempted to get ahead by unfair means, they have developed a language of justice that emphasizes adherence to agreed-upon rules of contract. According to Gilligan, widely accepted scales of moral development are developed to recognize and validate the voice of justice but not the voice of care. As a result, those that speak the language of care (typically women and members of other subordinated groups) do not generally reach beyond Kohlberg’s third stage of moral development (Ritzer, 2005). According to Barnett (1997) Gilligan’s work and the work of the feminist gender difference theorists tends to generate controversy, given especially the fact that most feminists struggling against the acknowledgement of sex and gender differences find Gilligan’s theory dangerously reminiscent of a romanticized 19th century ‘separate spheres’ ideology. It is the criticisms Gilligan’s work that have seeped into feminism law journals1213. The idea that Gilligan’s theories as stated in her work on the ethics of care in essence tends to accept gender differences. The problem here however tends to remain with the fact that the theory tends to keep struggling in its debate on the the positioning on care in law, seeking to explore issues such as whether or not care is just an aspect of personal morality conceived as justice. She suggests that gender difference and gender identity could in fact be a starting point for feminist solidarity. This could be in turn used in the long run for the distribution of power and an overall empowerment of the people14. If one were to refer to Gilligan;s work, one finds that there is a continuing reference to the manner in which men and women tend to be different in their perception about law. The idea for women is that they are supposed to be providers of care and this in itself is a concept that is supposed to be more powerful than justice. This interestingly, is not the case for men, whom the law tends to perceive as the executionaries of the ethics of justice. It is this concept of law that feminist jusrisprudence tends to challenge. Gilligan’s writings have in fact served as a symbol of the validation of women’s differences and sometimes of their privileging, in areas of thought such as defining care as being better than justice, and relationships being better than rights. One has to understand the fact that laws have not progressed far enough in their eradication of gender bias that we abandon the category of gender-law therefore needs the transformative potential offered by gender difference analysis and women need gender difference analysis for solidarity (Barnett, 1998). Where the perspective of care is concerned, according to the theory put forward by Gilligan, one finds it simpler to see how the extrication of the person from relationships15. Also she tends to focus on the separation of public from the private, which in then would end up defining the sphere of human activity, which it is possible to maintain only so long as there are those that care about relationships-taking care of the private world while feeling bound to others. This is the idea that Gilligan puts forward in her theory on the ethics of care. In the past this struggle of caring was characterized by being a burden to the women, in fact it being their special obligation, for which they tended to remain unpaid or poorly paid16. The problem here would therefore be that women are excluded from the realm of tangible public decision making-a case that would be worse in most classes that were further segregated by class or caste differences. Women who lived in patriarchal families, societies, and culture would be bound internally and externally by obligations to care without complaint, on pain of becoming a bad woman: unfeminine, ungenerous, and uncaring. This, when challenged would automatically then tend to change the very fundamentals of modern western law Gilligan appears to relate the ethics of care to women’s roles as currently structured. Gilligan’s findings may be culturally and time dependant in that if roles change, the moral approaches of women and men may also be altered. Moreover, to the extent that women’s and men’s differing ethics are interdependent, changes in one would beget changes in the other. Gilligan’s work has sparked much comment, some of it critical (Blum, 1988). Some have disputed the empirical validity of the conclusions drawn from the data while other theorists including the likes of Catherine MacKinnon have criticized the interpretations offered. MacKinnon has argued that Gilligan failed to recognize that ethics of caring and reliance upon relationships (instead of upon rules) are artifacts of power. Those who have no power have no capacity to make rule-based claims and instead are supplicants to the empowered. MacKinnon appears on the other hand to favor the difference approach-the idea is that women who want equality, and yet find that they are different, the doctrine provides and alternate route- to be different from men17. This equal recognition of difference could be termed the special benefit rule or special protection rule legally, the double standard philosophy18. Considered an exception to true equality and not really a rule of law at all, this is the one place where the law of sex discrimination admits it is recognizing something substantive19. . MacKinnon is hard on the questions of sexual equality, taking it up as a special problem. Her fundamentals are that there needs to be a method through which women could gain access to everything that they have so far been excluded from, while also valuing everything women are or have developed as a consequence of their struggle either not to be excluded from most of life’s pursuits or to be taken seriously under the terms that have been permitted to be the terms that women operate upon. The MacKinnon School of feminist critique of jurisprudence could be understood in the context of negating the dominance of men in the society and is in fact that the most caricatured of all variations of feminist thought. Although, one could find its roots in the partly in the writings of the 19th century abolitionist Sarah Grimke (1837), one finds clear links with the Marxist school of thought as well (MacKinnon, 1983). The basic premise of the MacKinnon school of thought lies in the fact that the 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”20.   According to MacKinnon, feminism has this habit of counting bodies and not sexes. This principle, when applied, would mean that men tend to gain an upper hand along with an advantage in the arenas wherein, women previously had monopoly. This would happen because of the fact that men would always be looked upon more favorably than women, in the courtroom (MacKinnon, 1987). She points out that almost every sex discrimination case that has been won at the Supreme Court has been brought by a man. Under the rules of gender neutrality, which has been proposed by most other feminist critics of law, would suggest that while the laws of divorce and custody have been modified to entrench the voice of women, what has in fact happened is that the men have gotten equal rights-meaning equal chances at gaining custody of the children and alimony21.. Women, under the guise of protection of law tend to be voted out of employment. What this means therefore is that the double standard of these rules would automatically signify that these laws do not given women the dignity of the single standard. She criticizes the work done by Gilligan, equating the moral reasoning and the principle of care that Gilligan arrives at with the hypocrisy of the special protection rule. In order to fight the double standards inherent in the theory of equality, MacKinnon, offered a way around the problem in the shape of the theory of subordination, the subordination principle as it is better known, argues that in thinking about inequality, abstract notions of difference, should be replaced by a focus on actual social dynamics22. The assessment of subordination involves an inquiry into the historical origins and the social, economic and psychological effects of the policy or practice in question, rather than simply its formal nature or statistical effects. Also a finding that a practice or policy does subordinate a particular group creates a clear imperative for affirmative action is that there is an elimination of the subordinate status. At the same, time, affirmative measures tat differentiate between an outsider and a dominant group for the benefit of the former could be perceived as being un-objectionable, given the fact that they do not subordinate the latter (Hunter, 1992). MacKinnon identified the five cardinal dimensions of liberalism as individualism, naturalism, voluntarism, idealism and moralism, and demonstrated how these work in the context of men’s magazines. In this litany, the nature in which a female model spreads her legs on the magazine is acting voluntarily and well within reason. It is thus legal for her photogenic body to be exposed to the light of the camera. The law accepts this and agrees to it, and this where the role of feminist jurisprudence needs to be registered and understood. Legal writing links the theory of dominance and subordination in law, by linking the MacKinnon’s theory to the reality of law. The idea put forward in MacKinnon’s writings is that the nature of law, in its present form, is such that it disregards the special factors that are associated in a crime with women, to the point that what becomes obvious is that the specialty of a crime where there is something wrong happening against a woman, would never even have registered when these laws were apparently being framed. The fundamentals defining the theory of law, center on the theory of androcentrism- a clear exercise in male chauvinism23 24. Self-defense, for example is defined as the defense that a person held guilty of a crime could hold up and be found innocent backed by a simple idea if he or she was perceived as being in imminent danger of great bodily harm or death and responded to that danger with only as much force as was necessary to defend against it. Although, it is correct for one to assume the fact that the definition has nothing much to do with gender on the very face of it, could be quantified as being completely neutral to the nuances of it no longer seemed quite so gender-neutral once feminist legal scholars finally pointed out how much better it fit with a scenario involving two men in an isolated episode of sudden violence than with a scenario involving a woman being battered, first in relatively minor ways and then with escalating intensity over the years, by a man who is not only bigger and stronger than she is, but from whom she can not readily get police protection because he is her husband (Jordanova, 1989). The importance of Gilligan’s work stems from the power of her metaphor. Women’s votes have not been much heard in the law. While initial feminist approaches were assimilationist, and sought access to and inclusion in a world that had been closed to women, more recent feminist work has raised questions about the structure of that world. Rather than simply being men in skirts, women have begin to think that they can still be women in roles that were in the past the sole province of men, as a consequence, definitions of the roles themselves tend to undergo a sea change25.. While both Gilligan and MacKinnon booth provide divergent explanations both of the source of what we understand as ebbing women’s ways, and how feminism could be made transformative both of tem along with others trend to seek solutions to the manner in which the voice of women could be taken into account. What one concludes in the light of the discussion is the fact that modern feminist theories on law and legal relationships tend to highlight the discrepancies in law that exist pertaining to the facts of women in law, and law in the context of how it impacts women. The idea is simple, feminists such as MacKinnon and Gilligan, tend to draw on the very social fabric on which law is created to expose the fact that modern western law is largely insufficient in dealing with the problem associated with women, in the domain of their special needs or the singularity that their association tends to bring to a crime, given their biological position of relative weakness. What these authors seem to suggest is that the dominance of the male centric law, which is based on the assumption of head-counting rather than sex-counting be replaced. The present law is based on the singular assumption that men and women are equal. These feminists, however tend to argue that men and women, while being equal in many ways, are not to be treated equally where law is concerned, given the fact that women operate from a position of weakness. Law in its present state, based on the equality assumption is a falsehood, because it does not in fact work on the principle of equality but tends to favor men over women. The subordinate principle they argue should replace the dominance principle. This if and when promulgated would change the very structure of modern western law. Reference: Blum, L. A., (1988). ‘Gilligan and Kohlberg: Implications for moral theory’. Ethics. Vol.472. p98  Taylor, B., Rush, S. and Munro R. J. (1999) Feminist Jurisprudence, Women and the Law: Critical Essays, Research Agenda and Bibliography, Rothman, Littleton, Colorado. pp572  Ritzer, G., (2005). Encyclopedia of social theory, Volume 2. Sage Publications. p276 Hunter, R., (1992). Indirect discrimination in the workplace. Federation Press. pp8-11 MacKinnon C., (1987) “Difference and Dominance: On Sex Discrimination” in Feminism Unmodified: Discourses on Life and Law, Cambridge, MA, Harvard University Press, pp.32-45  MacKinnon, C., (1989) “Towards a Feminist Jurisprudence” in Towards a Feminist Theory of the State, Cambridge, MA, Harvard University Press, pp.237-249  Gilligan, C., (1995) “Hearing the Difference: Theorizing Connection”. Hypatia. Vol10. pp. 120-127 Bem, S. L. (1993) The lenses of gender: Transforming the debate on sexual inequality. New Haven, CT: Yale University Press. Freud, S. (1959). Some psychological consequences of the anatomical distinction between the sexes. In E. Jones (Ed.), Sigmund Freud: Collected papers (Vol. 5, pp. 186-197). New York: Basic Books. Gilman, C. P. (1971). The man-made world; or, Our androcentric culture. New York: Johnson Reprint. Jordanova, L. (1989) Sexual visions: Images of gender in science and medicine between the eighteenth and twentieth centuries. Madison, WI: University of Wisconsin Press. Baer, J. A. Our Lives Before the Law: Constructing a Feminist Jurisprudence, Princeton University Press, Princeton, N.J., 1999.   Smart, C. "Feminist Jurisprudence", in P. Fitzpatrick (ed.) Dangerous Supplements, Pluto Press, 1991, pp. 133-158.  Drakopoulou, M. (2000). "The Ethic of Care, Female Subjectivity and Feminist Legal Scholarship", Feminist Legal Studies. p109.  Barnett, H. (ed) (1997). Sourcebook on Feminist Jurisprudence, London, Cavendish Publishing. pp209-211 Barnett, H. Introduction to Feminist Jurisprudence, London, Cavendish Publishing, 1998.   Read More