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This article has been written by Kaushiki Vatsa pursuing the Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho. This article has been edited by Ruchika Mohapatra (Associate, Lawsikho) and Dipshi Swara (Senior Associate, Lawsikho).

Introduction

There are many laws in the world that support one group that tends to be powerful or in powerful positions (most of the times) and is unjust to another group that may not have that high a reach or is not that influential. In this article, I will be talking about laws that are very unjust towards a particular group- Females. (Global Citizen, Sexist laws that still exist in the world) Some examples of these unjust and controversial laws are-  (a) no punishment for martial rape in India and Singapore as long as the wife is above 15 years and 13 years in the respective countries, (b) in countries like Jordan and Lebanon, every citizen is not treated equally and women are given the status of second class citizens, (c) there are more than 46 countries where they don’t have any punishment for domestic violence, (d) women inherit less than their male counterparts in “developed” countries like US and Chile, (e) In Israel a woman can only file for divorce after getting the “permission” from her husband and (f) there are approximately  32 countries in the world where women need their husband’s permission to apply for their passports. 

The aim of this article, by giving all these examples of unjust laws throughout the globe, is to show that these unjust laws are not exception to the laws but in fact these laws become laws in the first place because of the systematic exclusion, marginalization, relegation to the fringes of women in most of the societies (irrespective of their stage of development). In this article,  I would like to narrow down the scope to abortion laws and analyze Poland’s ban on abortion.  The aim of this  article is also to prevent the Polish abortion law from looking like an aberration or an exception within the law- essentially, to prevent the Polish abortion law from being seen in a vacuum, but rather as an example of many such iterations.

Poland’s ban on abortion 

Understanding the jurisprudence behind it

This polish ban on abortion  and the several protests going on as a result of this law can be explored from the perspective of the natural school of law or the positive school of law. Natural school of law sees the law as something which can never be changed with the change in society or beliefs. It is based on the thinking that to form laws we don’t need any prior experience. Positive school of law in simple terms is man made laws. Both of these schools of law give more importance to the law-making processes and do  not highlight the condition when the law is passed that is discriminatory. Both of the schools of law believe that our legal system and laws are neutral, and they are just and fair to all the groups which are present in the society (which is clearly not the case here). 

As of 27th November 2020, Poland banned  all abortions except when the life of the women is in danger due to the pregnancy, or the pregnancy is the result of some criminal act and lastly, when the chances that the fetal impairment might occur are very high. It is important to note that Poland has one of the strictest abortion laws in the country and it has a lot to do with the country’s inclination towards religion. The main aim of the elected government of Poland is to promote several religious agendas that are very discriminatory towards women. As it can be directly seen, this law is clearly assaulting women’s rights and to some extent is morally wrong as well. I would like to explain this behavior through one of the jurisprudence theories, that is the Critical Legal Theory. This theory considers that law is not all neutral and that the law affects different groups of people in different ways. This theory considers the legal system as something which is very unjust and discriminatory as it favors the ones who are privileged while neglecting others. 

The whole structure of our society is that the laws are made for the benefit of one powerful group while being discriminatory towards others. (Ian Ward, The introduction of Critical legal theory, pg. 23). This theory can be helpful to understand why this law was passed in the first place. It is no doubt that the abortion law must have been passed or supported by the group of people who are at powerful positions in the society and  not at the receiving end of this law and rather this law might be beneficial for them. This abortion law in some way legitimizes the injustices against women which is prevalent in Poland and also saves the people who make the law to benefit themselves or particular set of groups rather than saving the whole society.  This particular law also helps us to see the actual facts playing out in society : oppression, inequality, lack of neutral reasoning, marginalization and systematic oppression of one or more particular groups (one gender in this particular case). This law also highlights the fact that every man is bound to a chain that has been embedded in the  society.

Socio legal perspective

 If we talk particularly about this law, this chain comprises  some of the controversial concepts like patriarchy, marginalization of females that has been there in the society for so long that it has led to the systematic exclusion of women from the public space. It is also important to note that this chain is something that can’t be seen or recognized but still it guides us throughout our day-to-day activities and influences all the big or small decisions that we take and as long as a human lives in the society he can’t be unchained. It can be, therefore, deducted that this abortion law is something which is more than a law and is rather a codified form of society’s biasness and intolerance towards the females who already have been marginalized and oppressed. The point to note here is that this non-objective and non- neutral nature of law helps us  showcase that from the very beginning, law is discriminatory.  This also gives us an idea as to why some of the responsible citizens of  Poland are following the law (which is so oppressive and discriminatory in nature) as they are also confused by the myths of the law like the rest of us.

What does the feminist theory say?

To analyze this law more let us look it from the perspective of liberal feminist theory (Stanford Encyclopedia of Philosophy, Liberal Feminism). By applying this perspective, we can deduce that this law might be passed solely on the basis that women are someone who are less strong or less intellectual than men by nature and that is why their most important function is  reproduction as they are not fit for any other activity. Liberal feminism believes that this subordination is rooted in the set of practices and customs and therefore the society has many legal restraints that block women from enjoying most of the opportunities. 

In our society, over time a concept of gender roles has been created which assigns specific duties to a gender. The Poland abortion law highlights the fact that in our society, there is discrimination between men and women under the democratic laws that also influence important spheres of women’s life including the field of reproduction and heath care. This theory also encourages that women should raise their voice on the laws that are made so that they can change the decisions that were made for them (without consulting them). We can clearly see that this is what is actually happening in Poland. Women are protesting and raising their voice so that they can draw the attention of everyone on how oppressive and detrimental this law is. The way how men (both powerful and weak) try to control the lives and day-to-day activities of women is indicative towards patriarchy.  (The Guardian, Radical Feminism by Jonathan Dean). It can be clearly noticed that patriarchy is present in all aspects of society from their workplace to their homes. And this norm is so ingrained in the society that the only way to get freedom from  this particular norm (chain according to the Critical Legal Theorists) is to restructure the society. 

Abortion, as an issue, also paves the path for us to consider the public/private divide resonant across the strands of feminist jurisprudence. From what has been going on in our society for a long time, it can be concluded that men control or dominate the public sphere that is the workplace or a public space whereas the women forcibly have to manage the private sphere that is the domestic sphere (which is within the household), even if they don’t want it.  It is quite interesting that women are “kept” within the houses and have to do domestic work because these works are considered inferior. The whole purpose of doing this is to ensure that women should be kept being oppressed and dominated by them. Eventually this conditioning makes it nearly impossible for women to take their stand and raise the issues that are affecting them directly. It has been observed that all the political processes are biased, and they tend to prefer or favor the public sphere more than the private realm. All law making is done with the mindset to benefit the public sphere as the people who are in power usually go from this sphere only. This isolation of women from the workspace or the public sphere has been possible because of the process of continuous marginalization of them from one generation to another. Ban on abortion is dangerous because of the fact that it violates  women’s rights even though the people who support the ban say that all this is to “protect” women.

 All of this is nothing but a mechanism to control women in every way possible as they are too “weak” to look after them or raise their issues on the matters that are directly affecting them. There has been a historical US case of Roe v Wade [Roe v Wade 410 US 113 (1973)] where the Supreme Court said that women’s right to abortion is implied within Right to Privacy.

From the lens of Realist school of law

Let us try to decipher the fact as to why sometimes the courts and judges have held no objections regarding these laws which seem oppressive as well as discriminatory even though their duty includes protecting the rights of every person. For this approach we have to look into this law from the realism aspect (Britannica, Realism by Duncan Bell). This theory claims that the law can be anything that the judges decide and eventually the court claims. Here comes the role of all humans and the societal factors as well as the personal bias, opinions, ideologies and beliefs of the judge. It is important to note here that this personal bias can be conscious or unconscious and the judges may not know that they have this particular bias regarding someone. 

Realist school of law takes into consideration both the analytical and sociological schools of law. Like the analytical school of law, the realist school believes that the law should be taken as it is and like the sociological school of law it believes that the law and the various decisions are made keeping in mind several factors of the society. They also believe that the laws and the decisions should be made in such a manner that at the end it should meet all the needs of the society. And therefore, the tribunal court of Poland has  tightened this already strict abortion law instead of completely scrapping it. They stated that even in the conditions where the foetus  is diagnosed with a very dangerous disease, the abortion will bedenied. This tightening of one of the strictest ban laws in Europe indicates there might be a majority of people that support this law and the ideology behind it and that is why the courts have made it stricter so that they could meet the needs of most of the society. Poland has always been a very conservative country which has been making oppressive laws throughout the time. All the laws that are made reflect the bias of the judge and the society and the intention is  to promote catholic practices. It is also important to note that in order to achieve these agendas they have continuously attacked interpretation done by judiciary, pulled away the freedom and neutrality of the media and made laws that are oppressive towards women as well as LGBTQ or any other minority group. 

Is the Poland law oppressive?

It is important to note that  public health plays an important part in a country’s development and therefore, it should not be taken lightly . The Poland law is oppressive and therefore women throughout the country are protesting against it. These women who are rebelling against a law should not be treated as “badman” [USLegal, Badman theory] Badman is a metaphorical term used to define people who are against the law. Moreover, this activity of protesting should not be considered morally wrong. But instead, their queries, concerns or suggestions that they have with this ban law should be completely heard. They should be provided with the lawyers so that courts can directly hear their problems or various suggestions that they have with the existing law. The role of judges should be to decide how to solve this very particular scenario in the present and therefore they should not just blindly follow the previous judgements which were wrong rules (Harvard Law Review, The Path of Law by Wendell Holmes Jr., pg 3). According to  Hart’s rule of adjudication, the judges must realize that their knowledge is very limited to change the biased nature of judges while taking a decision or passing the law. They can consider these people who are opposing the law to increase their knowledge as well as their experience as they will get to know their side of the story as well. Moreover, this interaction will also give them the correct internal structure of the society and they will get to know the correct position where the society stands (Bix, American Legal Realism, pg 200). This will further help the judges to adjudicate properly as they will keep the interests of all the groups in their minds. 

Conclusion

This law has become a very sensitive issue and therefore to reach a logical conclusion the judges, the lawyers and as well as the involved parties should be in harmony with each other. The law in no way should feel like it is followed because it is the gunman’s order and because of fear (Bix, Kelen’s Pure Theory of Law, pg 63). The people that are present in the elected government should be more responsible and accountable to all the different groups that are present in the society and this accountability of the officials will further increase their efficiency (Bix, Kelsen’s Pure Theory of Law, pg 61-62).


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