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Feminism in modern jurisprudence

September 20, 2021

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This article is written by Rishika Rathore, from the School of Law, Jagran Lakecity University. It addresses the subject of modern feminist jurisprudence, along with the feminist philosophy of law and modern schools of jurisprudence. Additionally, it talks about fundamental themes and approaches to the feminist philosophy of law.

Table of Contents

Introduction

The word feminism has been derived from the Latin word “Femina”’, meaning a woman. But, what does feminism imply? There are different answers to this question due to discrete perceptions of the people. The true meaning of feminism is a set of movements with the object of determining, defending, and establishing equal rights for women in the field of economy, education, politics, etc., and social rights for women with equal opportunities. Feminism is an ideology of gender equality, thus a feminist can be a man, woman, or transgender as well. But, here comes another question, i.e. what feminism jurisprudence is?

Throughout world history, women have been deprived of equal rights, status and opportunities by getting labelled as a fragile section. They have been associated with the kinds of work that are within the boundaries of their house. Feminism jurisprudence or feminist legal theory claims that law should be equal for all, without any social prejudice or male domination. It carries the study of standards and application of different issues that have developed and emerged within feminists’ thoughts and eventually became a theory. This paper highlights the sketch of modern jurisprudence, the feminist philosophy of law, and various approaches to it, before concluding insights of modern feminism jurisprudence.

An overview of modern jurisprudence

The word jurisprudence has been acquired from the Latin word “jurisprudentia”, which means skill or knowledge of the law. It is a subject, whose knowledge creates a base for pillars of whole legal studies and cultivates one’s ideas about a particular theory. Bentham was the first philosopher who analyzed the nature of law, therefore he is known as the Father of jurisprudence.

Jurisprudence is the apex source of democracy and judiciary, on which modern civilization is based. The structure of the judiciary and democratic system carries genes of jurisprudence, therefore it is the DNA of every democracy as well as the judicial system. After the 15th century, the period between then and now is known as modern jurisprudence. It was concerned with the principles of civil law, natural law, and the law of nations.

Schools under modern jurisprudence

There are six schools of jurisprudence, namely natural, analytical, historical, sociological, realistic, and contemporary. All the schools, except natural, are considered as a part of modern jurisprudence:

Analytical school of jurisprudence: It was co-introduced by Bentham and Austin. It insists on what is the nature of law and what could be the possible nature of law. Austin is the father of analytical jurisprudence, therefore this school is also known as the Austinian school.
Historical school of jurisprudence: It was introduced by Savigny. Through this school, he underlined that law is the source of ritual, customs, etc., therefore Savigny is known as the father of historical jurisprudence.
Sociological school of jurisprudence: This school was the first of its kind that highlighted the significance of public interaction with judicial systems and governments while focusing on basic rights. Rudolph Von Ihering is known as the father of sociological jurisprudence.
Realistic school of jurisprudence: This school was introduced by John Grey. It was focused on the role of courts, judges, court proceedings, and judgments. He made a forecast that “judgments are the source of law”. Therefore, John Grey along with Oliver Wendell Holmes became the father of realistic jurisprudence.
Contemporary school of jurisprudence: Recently, Indian jurist Mr. Deepak Sharma introduced India’s indigenous jurisprudence, the contemporary jurisprudence. It emphasizes democracy and justice and has been outlined to know the ways to emancipate the democratic structure and to increase the efficiency of judicial systems. Mr. Deepak Sharma is the father of contemporary jurisprudence.

Feminist philosophy of law – feminism in modern jurisprudence

Feminist philosophy of law has been a debatable issue among liberal feminists and radical feminists. The former wants non-discrimination, impartial society, and equal opportunities for women, while the latter criticizes the existing structure of law, claiming that it has an essence of patriarchal society. Feminists believe that laws have been made from men’s perspective and no one has ever considered women’s point of view and their contributions in the past. There are three major ideological schools of feminist jurisprudence:

Liberal Feminism – This idea encourages independence, freedom from old-aged stereotypes made by a male-dominated society, and gender discrimination.
Radical Feminism – This idea is against inequality encountered by women and male perception of considering all men as superiors. It also condemns patriarchal traditional beliefs, for instance, “ghunghat pratha” imposed on women.
Cultural Feminism – This ideology is similar to that of radical feminism, as it is concerned with giving wings to the moral and ethical values of men as well as women while appreciating the distinctiveness of men and women.

The extensive influence of patriarchal thoughts on the legal structure gets reflected in the condition of women in their homes as well as in society. On that account, the feminist philosophy of law acts on the following terms:

Turn over a new leaf to restrict gender injustice, women’s exploitation and promote freedom and equality for women.
Mirrors a profound shift in fundamental assumptions about the nature of women and their significant role in society.
Re-examines the basic understanding of sex, gender, and gender roles.
Applies insights by considering problems at the junction of sexuality and law.

Fundamental themes of concern in feminist philosophy of law

The different representations and approaches to feminism have provided various considerable contributions to feminist legal philosophy. In addition to this, feminist legal theory has been evolved, with concerns such as equality, liberty, injustice, and diversity prevailing at different loci. Notwithstanding these different approaches, focuses, and insists, certain themes remain common such as the rule of law, equality, fairness in the law, human rights, etc.

The rule of law

The rule of law contains a set of principles that provide directions to govern a community in a formal and procedural nature. The formal nature involves norms like stability, publicity, universality, and lucidity that govern a society. The procedural nature talks about the practices by which these norms are directed in institutions like courts, along with the independence of the judiciary. Moreover, rule of law also comprises substantive presumptions like liberty.

The legal systems are consistent and long-lived conceptual systems that can always be challenged, but the aim of law remains constant. Feminist critics argue that the consistent forming of ideas for the rule of law tends to strengthen and legalize the male-dominated or male-perceived status quo.

The status quo is an unavoidable bitter truth of law because violations, wrongs, injustices, etc. are defined by variations of law, typically from the old-aged status quo. Thus, feminist philosophers of law have observed and concluded that there is an invisible routine bias, which is so blended that it get accepted not only by lawyers but also by its victim as well as its receivers. Therefore, the primary task of feminist philosophers is to identify such biases through different approaches. Moreover, they condemn the patriarchal state of affairs and nearly universal presumptions about gender imbalance.

Equality and difference

Men and women have always been viewed as remarkably different and due to this reason, it has been found acceptable to treat them differently in the law. One of the main reasons is sexuality and gender tasks. Only women get pregnant and only men have a muscular physique. Feminists think that these differences are exaggerated and should be normalized. For instance, pregnancy leave should be given to both women and men, because pregnancy should be considered into biology rather than a social construction, and therefore special treatments like permitting maternity leave to women, will be unequal treatment to men.

The foremost task of feminist philosophers is to communicate what kind of equality is required against the patriarchal system. On one hand, the liberal feminist focuses on Aristotle’s principle of procedural equality which says – “similar cases should be treated similarly, while different cases should be treated differently, following their proportionality”, and on the other hand, other feminists raise skeptical questions whether there are any differences or not that law may legitimately take into account. Thus, the biggest responsibility of the feminist philosophy of law is to identify and acknowledge certain differences without promoting sexism, establishing stereotypes, and injustice.

Fairness in law

Another domain, where the feminist philosophers attempt to reveal patriarchal norms, is the legal standard of fairness that plays a significant role in law. In terms of traditions, such standards were considered in an average reasonable man. This formation highlights the excessive bias and gendered nature of law. Presently, this standard has been altered from reasonable men to the reasonable person, but feminist argues that such standard still has an essence of male norms. Like in the old days, today also, women’s rationality is decided and judged by patriarchal thoughts. If a woman makes any social blunder, she gets criticized and called irrational or unreasonable. Thus, a persistent theme of masculinist ideology is still reflected in the fairness of the law.

Public and private distinction

One of the central themes in the feminist philosophy of law is the sensible distinction between men and women. Liberal and radical feminists have independent thoughts regarding this theme as well. Liberal feminists put forward the idea of keeping the private life reserved for personal choice, but radical feminists step up concerns that there are no specific lines that separate private inequality and exploitation of women from that of the public. Moreover, they argue that patriarchal and sexual dominance infiltrates private relationships. Thus according to feminist philosophers, all the legal systems that permit or strengthen dominance in personal relations should be restricted or reconstructed. For example, in Islamic law men are allowed for polygamy but women are not. Thus, feminists cry out for scopes of distinction between private and public life to avoid discrimination that starts within four walls.

Human rights

Another concern under the feminist philosophy of law is human rights theories. Progressively, a large number of societies have rejected sexual inequality in law for the sake of basic human rights. But some feminists praise this development but on the contrary, they also argue that societal commitments to human rights are all shallow and hypocritical. They are concerned that many existing laws are nourishing with the reflection of patriarchal thoughts. For example, in India, many civil services or government exams have reservations for women and girl children. It reveals two male-dominated thoughts, first is, a man considers a woman less capable, that she needs special stairs for basic educational rights. Second is, even now some girls and women are not allowed to educate or work.

Diverse methodologies

In terms of methodology, feminist philosophers have contributed and broken the ice in other areas of philosophy, that feminist philosophy of law has recognized as well. Although, there were genuine confusions and misunderstandings among feminists regarding the term methodology. Feminist philosophers found it quite difficult to find alternative thoughts within the male-dominated academy. They were concerned or precisely angered since all the popular and academic knowledge was based on men’s lives, men’s perceptions, and associated with the problems faced by men. Therefore, coping with such struggles feminists made great attempts not only to apply but also contribute their original thoughts to feminist knowledge production.

Approaches to feminist philosophy of law

The liberal equality theory

Liberal feminism is a specific approach that deals with the achievement of equality between men and women and mainly focuses on the power of an individual to call off discriminatory practices against women. Liberal feminists’ goal is to encourage an individual to her instincts and abilities to help men and women to become twins in the eyes of law as well as society. The key difference between contemporary liberals and bygone liberal feminists is their beliefs about freedom. A contemporary liberal feminist holds on that the personal liberty and political autonomy of women must be supported to achieve equality in democratic liberal societies. A bygone liberal feminist, on the contrary, claims that feminism’s political mission is restricted to repelling laws that treat men and women differently, and such a task has already been accomplished by them. Regardless of this catfight, their ultimate aim is to organize women into groups that can pronounce and raise awareness at huge levels.

The sexual difference theory

The theory of sexual difference carries arguments of gender feminism. It argues that the root of women’s maltreatment lies somewhere in the intersection of biology, psychology, and culture. According to it, the cultural characteristics linked with femininity are more superior and powerful than that of masculinity in many aspects, and therefore, men and women should spin their respective rational web.

The dominance theory

Dominance feminism is a theory of feminists that discards the approaches of equality and difference feminism. The feminists crying out for equality seek to have systematically equal access to all legal, traditional, and social male privileges for women. On the other side, feminists argue for gender differences and seek different legal and social treatment for women to compensate for past inequalities. Dominance theory, in some ways, supports feminists who fight for gender discrimination because as per this theory male social dominance is the result of well-established inequality between men and women. Dominance feminism gives credit to male concentrated efforts for women’s inferior societal position. It claims that males controlled women through social, sexual, and physical domination. Socially, they mastered women by objectifying and exerting patriarchal control over them, while making them legally powerless. Sexually, they imposed threats of forced sex, using cat-calls, making sexual advantage in the workplace, and moulding them as mere sex objects. As a Hindu shlok says, “naari taran ki Adhikari” – a woman is worthy to get beaten, implies men’s physical torture over women. Dominance feminism is also known as Catharine A. MacKinnon’s feminism.

The anti-essentialist theory

Essentialism can be termed as a collection of fundamental traits which are sufficient and necessary conditions to make things similar. It carries two steps, the first is differentiating between objects by considering the specific parts, and the second is to characterize the things within a sole concept, to provide a better understanding of essentialism. Feminist essentialism can be imprecisely defined as an assumption of universal women’s essence, originated from psychological and biological traits like beauty, sympathy, nurturance, supportiveness, etc. Essentialism fancies that all women share the same innate characteristics. Anti-essentialism simply opposes this assumption. Anti-essentialists defy the use of limited traits such as biology and psychology in the definition of women because it restricts the possibility of alterations in women, thus hindering social recognition of women.

The postmodern theory

Postmodern feminism is different from other feminist ideologies. It begins with the thought that modern feminists are overly focused on gender differences between men and women, and failed to recognize differences within each gender. Moreover, it claims that gender has been developed by perception-based discussions, that we adopted with the passing time. Apart from these, postmodern feminists claim their key element is that variants of patriarchy are due to women’s social characteristics. These views were framed within the theory of intersectionality which attempts to examine how social, biological, and cultural classes simultaneously interact with each other.

Conclusion

Throughout history, men and women have been regarded not only as distinct but also unequal in social status and power. Women have been deliberately cast as opposites to men through some outwitted contrasts such as behavioural traits, for instance, men are assumed competitive, rational, aggressive, intelligent, political, and dominant leaders, while women are supposed as fragile, emotional, domestic, care-giver, and underlings. These variants of assumptions have been omnipresently followed in every political and economic arrangement, from educational to religious institutions, to beauty standards and relationships. Unfortunately, the law is no exception. Therefore, the need for feminist jurisprudence felt among the societies so that law cannot be patriarchal any further, and to achieve such aim, feminists stood up, questioned the male-insight laws or practices, represented examples of illegitimate patriarchy, and guided the methods to establish “equality” for women worldwide.

References

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Feminism in modern jurisprudence

Introduction

An overview of modern jurisprudence

Schools under modern jurisprudence

Feminist philosophy of law – feminism in modern jurisprudence