Theories Feminist Jurisprudence - Essay Example

Feminist Jurisprudence and theories Introduction: Feminist thought is centered around female equality with men. Marilyn French defines feminism as follows: “Feminism is the only serious, coherent, and universal philosophy that offers an alternative to patriarchal thinking and structures. Feminists believe….that the two sexes are (at least) equal in all significant ways, and this equality must be publicly recognized. They believe that qualities traditionally associated with women….are (at least) equal in value to those traditionally recognized.”1 When the Feminist movement first commenced in the 1960s the major focus remained on achieving equality with men and feminist jurisprudence focused upon persuasive presentation to those in authority about the necessity to provide equal treatment to all individuals, defining social change as being centered upon providing equal treatment to similarly placed individuals, irrespective of their gender. However, this view has changed in recent years, thanks to the efforts of feminists such as Catherine MacKinnon, who critique the construction of law itself as being derived from a male perspective, therefore the basic question that arises is whether the assumption that law is neutral and can provide a fair hearing to all parties is justified. As a result, several feminist theories have been advanced – most notably, the equality theories, standpoint theories, ethics of care and postmodernism, all of which are examined below. These theories raise the question of whether existing universal standards and practices are indeed universal or whether in a social and legal context, long established norms conditioned from a male perspective need re-examination. While the goal of feminist jurisprudence remains the acquisition of equality for women on par with women, can this equality be achieved in the eyes of the law by gender neutral methods of analysis? As highlighted below, through an examination of the theories, it may be noted that it appears that sex is not an issue that can be so dismissed. Liberalism and Equal Rights: According to Janet Rifkin, “In the end, patriarchy as a form of power and social order will not be eliminated unless the male power paradigm of law is challenged and transformed.”2 This is the basic principle underlying the question of equal rights before the law for both men and women. Jurisprudence has remained a traditional male bastion with existing legal theories conditioned upon the premise of the “individual” as the philosophical basis for the legal system. Hence, earlier struggles for equal rights by women were centered upon proving to the higher authorities that women deserved equal treatment, but this was still on the basis that they were individuals. Feminist jurisprudence questions whether the “individual” as conceived in law is itself relevant? For example, MacLaughlin points out that the liberal perspectives of law as a fair and just system that protects is rights of all individuals is based upon treating all persons indiscriminately – but how can such a universal standard be defined in the context of differing constituencies and differing conceptions?3 While she upholds the feminist view that the rights of women as individuals must be upheld, she does not view this as being exclusive from cultural recognition. In arriving at her conclusion, she first examines Rawls’ premise of the original position, where a society that has differing views about what constitutes the “good” will have a system of law in which certain areas exist behind a veil of ignorance where gender, age, beliefs or systems will not apply. Rather, this neutral area will be one where rules derived are those intended to benefit the common good, based upon impersonal, impartial principles of law. This neutral area is derived through (a) identifying the rights necessary for the most basic level of liberty that is compatible with that required for others (b) social and economic equalities arranged in such a manner that they may benefit everyone and be open to all. He therefore presents a procedural model of political liberalism based upon this principle that a political system cannot be used to enforce one conception of good, but only to lay out a general, flexible framework within which individual differences are accommodated. Thus, according to Rawls, the rights that must be accorded under law is the right to live a good life but the law or the political system should not include the right to determine what that good should be.4 Dworkin presents this as the discontinuity analysis, whereby within a democracy, there are two separate areas – the private life where the individual has the right to determine what is good for him or her while the public sphere is a communicative area where individuals can discuss common problems and issues and arrive at a standard for the common good.5 The feminist critique of the proposition of equal rights is founded upon the principle of whether the veil of ignorance behind which the law purportedly operates will in fact be sufficient to generate equality and justice for everyone? Baer challenges the Rawlsian principle of equality on the basis of the male supremacy in law. She argues that for women to truly enjoy equal rights, they must in fact be accorded more rights, both in terms of a more equitable distribution of the domestic and child rearing traditionally considered to be within the female bastion, as well as in addressing the gender asymmetry that exists. She contends that applying a Rawlsian model of equality to such maintenance work will result in men shouldering more of these responsibilities, and it is only through strict sexual equality that the male supremacy in law can be addressed and equal rights be accorded to women.6 McLaughlin has articulated the feminist criticism of the liberalism and equal rights on the basis of the following: (a) the status and identity of the individual (b) the split between private and public sphere (c) the kind of equality (d) not taking into account context and difference7 Liberalism which forms much of the foundation of law and legal theory affords flexibility to individuals which is one of its good points, however the basic argument that is offered by the feminist critique of existing notions of jurisprudence is the fact that the theories and the idea of what constitutes individuality are grounded in male experience which is falsely attributed to be the human experience8.It is the “separatist thesis” which is the driving principle behind this framework of law, wherein the basis for political and legal intervention by the State is based upon the presumption that every human being is a separate and autonomous individual. However, this is the male concept of self not the female concept, which is grounded in connectedness to other individuals rather than separateness, and therefore such intimacy and caring for other individuals should be a part of the legal system, rather than being derived from the male perspective of autonomy.9 This differing perspective has important implications in law, as pointed out by McLaughlin, in her analysis of the views of several feminists. For example, the law’s framework of public areas where it intervenes versus private spheres where more autonomy is tolerated and there is a lack of concern for oppression in this areas, means that several problems that women experience in private areas and where they require legal assistance and equality before the law is largely denied to them, or is serious lacking in terms of effective redressal. The type of equality on offer is also an issue – whether it is procedural or formal. There is a greater level of political rights for example, as opposed to social or economic rights, as argued by Lister, while according to Anne Philips, the liberal promises of rights are based upon negative definitions of individuality and Brown questions the stress placed upon the right to opportunity rather than outcome. Thus, it makes no difference to a woman for example, if she has the right to opportunities that she cannot avail of because of low socio economic status, it is the outcome of legal activity that will be of more value than the existence of the opportunity. Finally, the feminist critique of liberalism also notes the difference in context of private and public spheres. In the interest of maintaining a practically neutral public zone where most varying beliefs can be accommodated, it is necessary to keep out everything that is private, however since most issues pertinent to women arise from this private and personal area rather than from the public sphere, this in effect means that the law fails to effectively address the necessary problems that must be addressed in order to generate true equality in rights10. In fact, law does not even begin to operate within the proper context in which it must, to be effective for women. Therefore, feminine jurisprudence is largely centered around recognizing the value of feminine thought and the struggle towards achieving equality for women. In order for the law to truly provide equal rights to women and be receptive to their needs, it is necessary that the law be built upon a connectedness framework rather than one of autonomy where private and public spheres are distinguished and cannot effectively address the inequalities of women. In this context Judith Baer addresses the question of differences between men and women and points out how the law is male and existing concepts of jurisprudence are male, so that if feminist critiques are to stand on their own, they must be based upon sexual equality and must “extirpate, ‘root and branch’, the male supremacy of conventional theory.”11 Furthermore, feminists such as Cornell and Nausbamm state that the law must continue to respect the rights of the individual and provide every person the necessary space in which to live out their version of what is good for them.11a The Ethics of Justice versus the Ethics of Care: Feminist jurisprudence also challenges existing notions of law on the basis of the philosophical basis of liberalism which is the foundation upon which they stand. Popular ethical theories such as utilitarianism and deontology are focused upon a universal standard of morality and ethical values, which are conditioned through a more rational and impartial approach which feminists refer to as a “justice view’ of morality12. However, Carol Gilligan was the main proponent of a different approach to ethics, in which she disagree with her teacher Kohlberg on the results of a study that they conducted in order to present participants with moral dilemmas and then evaluate how they arrived at their decisions on the right moral course of action. Kohlberg used justice as the basis to evaluate their answers and explained the differences in the male and female answers as being the result of differences in the stages at which men and women were on the scale of moral and ethical development.13 But Gilligan proposed that the gender differences had arisen because there was no universal standard of judgment that could be applied to both men and women. She argued that the moral outlook of women was different and the justice standard of ethics was prevalent only because it was the view of ethics that had been advocated in a male dominated society and that such a universal standard of morality was no longer maintainable.14 She believes that a person’s moral orientation varies according to the gender – while men are oriented towards the value of justice, women are oriented towards the value of care. Gilligan links the differences in morality among the two genders as a function of the differences in gender socialization of males and females Studies have shown that girls enjoy a close relationship with their mothers from an early age and develop feelings of emotional attachment, however in the case of boys, they must first achieve a gender identity that is separate and distinct from their mothers before they can develop as individuals in the emotional sense and in terms of their attachments.15 As a result of this gender differentiation boys come to value autonomy while girls come to value caring since they do not have to break away from their mothers in order to develop their own gender identities. Gilligan states that if a girl is brought up by her mother, there is a similar gender differentiation that takes place as a result of which the morality becomes one where the value of justice is emphasized over the value of care. The male justice view of morality has a standard of always doing the right thing even if it is at a great personal cost or requires the sacrifice of a loved one. However, the ethics of care on the other hand will lead a female to make moral decisions that will place the interests of loved ones over the interests of strangers, even if it does happen to be morally the right thing to do according to the male standards of morality. This may be seen to hold particular relevance in the field of law, because it raises the question of what should be considered morally right from the perspective of arriving at a judicial decision or evaluation of a moral problem in order to assess the degree of wrong doing of the person accused? Thus while Kohlberg related these differences in morality to differences in stages of development, Gilligan proposes that morality standards and perspectives are different for men and women16. As a result of the in out of Gilligan, Kohlberg revised his assessment of the moral decisions of the participants in his study. While earlier, he had ranked girls on a lower scale of moral development, Gilligan’s theory revealed that when the moral decisions were evaluated from the ethics of justice for boys and form the ethics of care perspective for girls, they were much more relevant and the girls and boys ranked on a more equitable basis in scale of moral development. Since women have been largely the passive gender while males have been the dominant ones, hence it is the male perspectives and views that have gained precedence. But is it necessarily right, just because it is the dominating perspective? This is the root of most feminine criticism, which proposes that it is necessary to apply differential systems of evaluation and that the notion of a universal standard in the field of liberalism that forms the basis for law is flawed. Thus, while re-evaluating morality from the different perspectives, it becomes clear that males and females are not ranked differently in terms of lower and higher morality scores based on one universal standard, rather their outlook is different. In the case of law, bringing justice to oppressed victims may therefore entail the application of different standards of analysis and it is by applying the correct value of care rather than justice, that female jurisprudence becomes more meaningful, relevant and non discriminatory. In the field of law, Gilligan applies the underlying moral “justice based” approach of men by stating that “men tend to embrace an ethic of rights using quasi legal terminology and impartial principles…women tend to affirm an ethic of care that centers in responsiveness in an interconnected network of needs, care and prevention of harm. Taking care of others is the core notion.”17 Therefore, Gilligan’s argument on morality and feminist jurisprudence is based upon the conception that men are women are different but equal. In this view, the view of Bear are also in support of the position that as far as the debate about equal rights for men and women is concerned, this can only be achieved through the imposition of asymmetrical gender responsibilities18. However, Baer is not in agreement with the ethic of care principle that Gilligan has proposed. She asserts that sexual equality is the key to achieving true equality for men and women and this cannot happen by merely acknowledging asymmetrical gender responsibilities and the different approaches of men and women, but by fighting for additional rights19. However, Robin West and other feminists offers support for the ethic of care approach and argues that the law fails to adequately address injuries to the female, because it only recognizes harm where injury is to the separate being and not injuries suffered by women who are mainly connected.20 This may be seen to be relevant in a case of rape for example, where the law may be less willing to prosecute a charge of rape brought forth by a prostitute, although the gross invasion of privacy is an equally relevant issue whether or not the woman is a virgin. According to West, connectedness for women can be both a positive and negative experience, while Ctaherine MacKinnon argues primarily from the basis that it is a negative experience, as detailed further in this Paper. Schikwert’s has highlighted the inter relation between the male ethics of justice and the female ethics of care and she argues that there is a reciprocal co-responsibility between both standards of morality, with both teleological and deontological theories being relevant in establishing the relationship between them.21 Her primary argument is that a normative standard of ethics needs to be developed which can incorporate the differing male and female ethical modes of thought. The views of Catherine MacKinnon: McKinnon argues that gender neutral methods of legal analysis are inadequate to address the issue of sex. She argues that discrimination meted out to women is not on the basis of distinction but on the basis of dominance, therefore views of sexuality are those construed from the male superior position, therefore in her views comparing men and women is of no use. She challenges the existing notion that sex is pleasurable to both sexes, because it places the woman in a subordinate position in the gender hierarchy, which also extends into other spheres. As a result, the law deals with difficulty in matters of crimes against women, because sexuality may be viewed as a matter of personal choice and therefore outside the realm of public law. McKinnon’s views are particularly relevant in the field of sexual harassment22, rape and such crimes against women. McKinnon raises the issue of the inability of tort law to address the problem of sexual harassment and the difficulty in registering it as an employment related social injury issue. A tort may be actionable in an instance where a moral wrong has occurred, however sexual harassment is an intensely personal matter that falls into the private sphere where individual nature and ideas dictates the nature of sexual activity, therefore the emphasis placed upon individual moral injury in tort undermines the fact that sexual harassment is in fact a social injury. Minson discusses this perspective further by pointing out that liberalism identifies sexual issues as essentially private issues determined by personal morality, where an individual bears full responsibility for his or her actions, therefore the law considers this a private issue where the State does not interfere through the framing of laws – this makes it difficult to characterize it as a moral problem that is deserving of remedies in tort, unless anti discrimination laws are able to transform this issue and pull it out of the private sphere into the public arena23. The question of whether sexual harassment arises out of discrimination as a result of women’s weaker position as compared to men or whether it is a crime actionable in tort is one of the debates that characterizes feminist jurisprudence. In the case of Strathclyde Regional Council v Procelli, the major issue was whether discriminatory treatment meted out to Mrs Procelli could be construed to be sex discrimination, since the law requires that in order to establish a valid claim of discrimination, the plaintiff must show that a person of a different sex would not have been treated in the same manner. In this case, the Court rejected this argument because the harassment was specifically targeted upon her as a female. Sexual harassment is increasingly falling out of the purview of discrimination, because the nature of the wrong is a subjective one. As MocKinnon has also pointed out, the difficulty in securing justice under the law as far as sexual discrimination is concerned is on the basis of its subjective nature. As a result of the difficulty in applying a uniform standard as to what would be construed as offensive behavior, the end result is that victims of sexual discrimination often do not receive any remedy from the Courts. In order for a crime to become one that is socially recognized and therefore actionable under tort or under other forms of discrimination it is first necessary that society acknowledges it uniformly as a wrong, so that it can be eligible for remedies on the basis of its being a wrong. However, due to the differing perspectives on what exactly constitutes sexual harassment, there is a social and legal failure to recognize this injury as a wrong, women have endured it, thereby highlighting the inadequacy of the law, yet again, to address the real problems of women and thereby accord them equal rights and protection under the law. For instance, Estrich corroborates McKinnon’s view of the inability to apply gender neutral standards to the issue of crimes involving sex, by addressing the issue of rape which is often construed to be consent, even when that consent is forcibly extracted. In order to be actionable in law, there must be a clear demonstration of resistance and standards of male aggression; however from a female perspective a refusal of consent may be expressed in terms that are not necessarily forcible to the extent with which men would react to sexual aggression. As a result, remedies for rape are limited and do not bring true justice to women, due to the level of resisting force that must be demonstrated and also because of the fear that a male defendant may be unfairly punished. Therefore, Estrich believes that the law should incorporate the female perspective in the law against rape and redefine its definition of consent, so that when a women says no, she means no. This is the only way that the crime of rape can be redefined from a true feminist perspective.24 McKinnon, Dowrkin and Estrich belong to the school of radical feminism, that offers a slightly different perspective in the ethics of care standards proposed by Gilligan. While all groups of feminists support the theory of connectedness in women that makes them different from the male jurisprudence that is based upon autonomy and separateness, radical feminism views the connectedness as a negative experience rather than a positive one. They highlight women’s need for physical privacy and sexual celibacy – their need to be relieved of the responsibility of connectedness and to care and be connected. These women are therefore more comfortable with the notion of law as geared towards the protection of individual rights through a recognition of their separateness, however they argue that while the preventive function of law in men’s lives is to prevent the frustration of their ends, in the case of women it is the very blocks in the way of achieving those ends that should be the primary goal of jurisprudence.25 Standpoint Feminism: The standpoint feminist perspective moots the practice of social science from the perspective and standpoint of female ideology rather than the traditional male ideology. The foundation of this theory is that women all over the world have a common shared experience which enables them to view the world from a different perspective. Moreover, in every part of the world, women have a perspective that is very different from men and is therefore a source of valuable knowledge through the combination of various feminist epistemologies in social and natural sciences which is a strong, effective basis for an alternative pool of knowledge that is different and can rise in opposition to the male dominant theories26. The goal of the standpoint theory of feminism is to place females within a relational context that is more realistic, in which the differences between women need not be a factor to isolate and separate them, rather they can bond across cultures and nations in order to establish a common relational framework in which a more effective feminist jurisprudence can be evolved through the incorporation of the female perspective into legal and social analysis. For example, McLaughlin discusses the Women’s Conference in Beijing that was held in 1995 where women from all over the world participated and were able to share their perspective on legal, social, economic and political issues. In this conference it became clear that in order to ensure that women have access to the full range of human rights, there is a need to go beyond mere political rights into a more wide ranging framework of rights that includes economic, cultural, private and reproductive areas27. It may be noted that the recognition of the need to include reproductive and private rights into the full range of human rights is a clear indication of the value of the feminist standpoint in ensuring a greater degree of fairness to women under the law. As a result of cultural and social expectations that have been framed from a predominantly male perspective, women are a marginalized group and therefore the standpoint theory offers scope for a unified perspective developing from the standpoint of women, taking into account the things that they have in common which binds them together. The Queer Theory: The Queer theory is still in its infancy, largely due to the influence of the ideas of feminists such as McKinnon, who have emphasized the negative aspects of the connectedness that characterizes the female standard of care. The human view of sexuality is conditioned by moral, social and religious beliefs and sexuality was associated with biology. Therefore, in spite of gender behavior and the fact that some people behaved or shared characteristics perceived as belonging to the other sex, the issue of sexuality was believed to be largely conditioned by biological impulses which were distinct in male and female. Michael Foucault has examined the historical progression of sexuality through the ages, especially the manner in which sexuality- being associated with the reproductive function – was also conditioned by political and/or economic factors where population control was the need of the hour. In earlier times, the definitions of male and female were strictly circumscribed, and notions of sex wee linked with morality where certain kinds of behavior and unions were right while others were wrong. As a result homosexual behavior fell into the deviant category and was considered bad and abnormal, especially from a religious perspective. The Queer Theory however des not restrict itself to an examination of only homosexual/lesbian issues, rather the scope of its study of sexuality extends to any kind of behavior that is different or out of the ordinary and would therefore be considered abnormal. The Queer Theory shares a great deal with feminism in that the established boundaries of what is considered proper and normal are being challenged. The existing views of sexuality and the determination of what is considered to be deviant or abnormal behavior is largely conditioned by the moral standards set out by the dominant sections of society. In a similar manner, the question of jurisprudence that has been practiced hitherto has been based upon a philosophical underpinning of liberalism that is conditioned by the male perspective of separateness. However, just as feminists are challenging the traditional notions of jurisprudence, the varying notions of sexuality and the question of what can be considered to be queer also raise the question of whether the legal and social standards that have been set out are relevant and applicable in addressing the legal needs of this particular category of people, especially since the category of homosexual/lesbian is echoed in all the nations of the world and forms a distinct sub group which could share a common standpoint. Conclusion: Thus, in conclusion it may be seen that the traditional framework of jurisprudence is derived from the philosophical underpinnings of liberalism, that advocates flexibility in the private sphere where an individual exists as an autonomous being and the public area where people communicate in order to share their ideas and to derive a common legal framework. However, feminist jurisprudence challenges the traditional structure of law itself as a patriarchal system based upon the conception of a “human being” as a separate autonomous individual – a definition that does not apply to women. There are several different critical stages at which women are “connected” – pregnancy, the sexual act, breastfeeding and this connectedness influences the manner in which they make moral decisions. The question of granting of equal rights to everyone is the primary objective of law in order to redress the wrongs that occur. However, feminist jurisprudence challenges the traditional notion of equal liberties, arguing that the separation of the private and the public, the separation of the individual and the people in his environment is anathema to the propagation of equal rights for women and to ensure that the law serves their needs. The Theory of Equal Rights challenge whether the framework of the law is really geared towards reaching that objective since it is fashioned largely out of male ideology. The perception of an individual as a separate being and the tendency of the law to view legal disputes from the perspective of justice, impartiality and morality, and to separate the private form the public – choosing not to interfere in the private – have all been inimical in the achievement of equal rights for women. Gilligan proposes that moral decisions made by women arise out of a standard of care rather than ethics, as a result of which the existing framework of law cannot adequately address the nature of those moral decisions that they make. McKinnon acknowledges the connectedness of women ad Gilligan does, however she views it from the negative perspective of invasion of privacy. West supports a simultaneously positive and negative perspective on connectedness, however most feminist criticism incorporates the view that the law is not adequately equipped to give justice to women because the private nature of the crimes make it difficult to hand out remedies and courts are reluctant to interfere in which is considered a private aspect, according to male dominated views. As a result, standpoint feminism is important because it helps to provide a common perspective for women, uniting their ideology and deriving the common foundations of experience, so that a relational framework is devised for the law that will incorporate a more balanced perspective that will be able to more accurately place women, queers and all other subordinated and/or oppressed classes within a particular place. Feminist criticism is vital in this day and age in order to adequately incorporate different perspectives into the law and to redefine traditional boundaries to bring more justice to everyone. One of the first steps in achieving this is the recognition that the sphere of human rights requires the law to recognize not only political rights and the rights of opportunity, but also the right to certain outcomes and the need to also provide economic, social, cultural and reproductive rights. Bibliography Books: * Andermahr, Sonya, Lovel, Terry and Wolkowitz, Carol, 1997 . A concise glossary of Feminist theory London and New York: Arnold. * Baer, Judith A, 1999. Our lives before the law: Constructing a Feminist Jurisprudence New Jersey: Princeton University Press at pp 189 * Beauchamp and Childress. Principles of Biomedical Ethics, 5th edn, at pp 371 * Chodorow, Nancy. 1978. The reproduction of mothering: Psychoanalysis and the sociology of gender. Berkeley and Los Angeles: University of California Press. * French, Marilyn, 1985. Beyond Power * Gilligan, Carol, 1982. In a different voice: Psychological theory and women’s development Cambridge: Harvard University Press * Kohlberg, Lawrence, 1981. Essays on moral development, Vol I: The philosophy of Moral development: Moral Stages and the idea of justice San Fransisco: Harper Collins * McLaughlin, Janice, 2003. Feminist Social and Political Theory Sweet and Maxwell, pp 26-41. * MacKinnon, Catherine A, 1979. Sexual harassment of working women Yale University Press at pp 164-170 Articles: * Estrich, Susan R, 1986. Rape Yale law Journal 95 (May 1986) pp 1087-1184 * Minson, J, P, 1991. Social Theory and Legal Argument: Catherine MacKinnon on Sexual harassment 19, International Journal of the Society of Law 355 * Ratterman, Debbie, 1989. Liberating Feminist Jurisprudence Off Our Backs , 19(8), p 22. * Schwikert, Eva Maria, 2005. Gender, Morality and Ethics of responsibility: Complementing teleological and deontological ethics Hypatia , 20(2), pp 164-188 * Rifkin, Janet, 1980. Toward a theory of law and patriarchy 3, Harvard Women’s Law Journal 83 at 87 Read More