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Essay: The critical analysis of law as an instrument to assist feminism

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  • The critical analysis of law as an instrument to assist feminism
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Gender equality, as most other types of equality, is a fundamental human right. When speaking of gender equality, one fundamentally speaks of equal opportunity (de jure) and equality of outcome (de facto). Both, procedural equality and substantive equality together will make up an individual’s right to equality. Gender issues have been around since the early seventh century; women have constantly battled for equality and are still not completely successful today. This is why it is important to critically analyse the law as an instrument to assist feminism. Essentially this essay aims to critique the law today in relation with issues of gender inequality, which remains a prevalent issue. Two main areas of focus in the essay will be the feminist legal theory and the feminist critical theory. Feminist legal theory is necessary to expose the masculine nature of jurisprudential theory and practice , this will show us the difficulty in achieving gender equality without legal reform. While feminist critical theory critiques the way in which literature portrays the narrative of male domination. In the end we end up at the fact that rights, as it is, is conceptually flawed because the concept presupposed ‘man’ as its subject, and as a result of this allows the violence, discrimination and subordination of women.

Definition and historical development of Feminism

The concept of gender is central to the topic of feminism. Gender can be seen as ‘a set of culturally shaped and defined characteristics associated with masculinity and femininity.’ Gender, therefore, is essentially not referring to physical or biological differences, but rather it refers to the social constructs of masculinity and femininity and not male-female differences.

It is also important to define what is meant by feminism before we begin to focus on its theories. Feminism is a theory and a social movement. It, as a theory and a movement, aimed to question the power relations between men and women that were termed natural. Feminism calls for equality in social, political, economic, cultural, linguistic and legal spheres, by way of rights. Although the term ‘feminism’ has been linked with woman activism from the nineteenth century to the present, it is useful to distinguish feminist ideas or beliefs from feminist political movements.

In relation to historical development, the earliest form of feminism was seen in around the seventh century, where women sought to reinterpret the misogynistic portrayal of women in literature. By the fifteenth century, there was a European wide debate led by Christine de Pizan known as the Querelle des femmes, which addressed this issue. The Seneca Fall Convention took place in 1848, and is the very first women’s rights convention. The first wave of feminism began in the mid-late nineteenth century, where the focus was on education, legal and political rights. Women gained rights, educational opportunities, improved maternity and child welfare. However, patriarchal structures remained the same. The second wave feminism, which emerged in the 1960’s saw the rise of four main feminism: liberal, psychoanalytical, radical and Marxist/socialist. Women in this era had a new sense of freedom- sexual, reproductive and otherwise. A lot of literature about the psychological aspects of gender was written and women began to realise that their subordination was not just a product of dominant political forces but also present in social situations.

Feminist legal theory

Law and law schools have a long history of male domination. The number of women law students and lawyers depicted this. However around the 1970s, feminist litigators and lawyers developed cutting edge theories to help women improve their legal status; for example, lawyers argued that in determining whether a woman killed in self defence, the defendant’s perspective as a woman should be taken into account and, it was argued for the first time ever, that sexual harassment is a form of sexual discrimination. All of this unjustness centred on a woman and the gendered nature of this led to the need for a specific area of specialty, which is known as ‘feminist jurisprudence’ or ‘feminist legal theory’.

When we look at the public/private divide in this area, it is clear that much has to improve for complete equality to be a legitimate goal. A lot of harm to women is often felt in the private sphere, where it is outside the scope of legal and state intervention. Some core topics, important to feminism are within this sphere, for example, family, sexuality and reproduction. To privatise issues such as domestic violence means that often, these issues go unregulated. The consequence of this is that women are provided with little or no protection from the law against the discrimination they face in this area, which is indeed a grave miscarriage of justice. Even where legislation is enacted in this area, they go unimplemented for various reasons. In order to do justice for women in this private sphere, Bridgeman and Millns quite adequately state that ‘[c]ontraception has to be safe, effective and acceptable; abortion services free [and legalised] and non-judgemental; and violence within the home has to be treated as a serious crime by law enforcement agencies’. The ‘naturalness’ of the traditional family is what keeps the private sphere from being adequately legally regulated as argues by Beveridge and Mullally. In their words, a traditional family is seen as a societal expectation and its needed to validate an individual’s stability in the society, therefore it is immune to judicial reform. The law has therefore kept from dealing with these issues, and only acknowledges the justice that’s required from the public sphere.

Using the feminist legal theory to improve the status of a woman has been met with considerable criticism. The fact that it uses law to do so has been the centre of much controversy. This is because we need to address that it was the law itself, which denied and discriminated women at one point of time. The law might have been amended for purposes of justice in recent times, however, it remains androcentric and this makes it difficult to understand why feminists use it as the conceptual framework to promote women’s interests. It is of course not possible to change the entire legal system so that it reflect a feminist’s concerns. At the root of this it is the clear that the law is a product of a male dominated system which creates rights on its own gender centric interests, therefore, it is suggested that in order to improve quality of justice, the system should be rid of its androcentric perspective.

Feminist Critical Theory

The main purpose of this essay is to critically assess the effectiveness of law as a tool to achieve gender equality. Essentially, to do this, we need to analyse the androcentric nature of law with reference to the human rights of women. The feminist critical theory can be used to critique and then rescue the idea of rights in relation to women by exposing its ‘biased normative functions and politicised knowledge claims.’ It makes us aware of how we use language to marginalise; ‘the presumptuous of the pronoun ‘he’ or occupational words such as ‘mailman”.

However, understanding the theory alone is not enough, the theory must effect feminist activism, so that it can essentially change a woman’s life. Change can only happen if there is a feminist intervention. Unfortunately, change does not stop at legislative reform, we can have clauses that promote gender equality but still have a problem with the intended effect of the clause. Feminist critical theorists stress the importance of the relationship between theory and practice. It is important to understand that a theory is not merely an abstract concept, but is embedded in and through practice.

The traditional representation of rights are identified as given to men who are ‘citizens’, rights that apply to men, then become rights that apply to ‘human’, with no regard for a woman’s particularities. The exposing of the androcentric nature of such rights and the exclusion of women were only possible with feminist intervention. What must be understood here is that the society and law itself has developed from the male psyche and hence exhibit only male characteristics and therefore only caters to the male viewpoint, hence the term ‘patriarchal society’. Can rights then, ever be deemed objective? According to Popper, ‘the objectivity of scientific statements lies in the fact that they can be inter-subjectively tested’ However, inter-subjectivity is often exclusionary.

It is distastefully interesting how the concept of rights, whether its freedom, equality or liberty , has always excluded women and referred to the rights of man. When we trace back the roots of the notion of citizenship, we realise that it emerged in the Greek era in the time of Aristotle, according to him, citizenship is only given to a ‘property owning individual very active in political life’ This quite obviously excluded the consideration of women, children and slaves. Rights as a concept has its roots in natural law theories, which has a moral and not a positivistic character. Locke however, talks of ‘man’ to refer to a right holder as a male, European, white, property owning persons, excluding women, children and slaves similar to the Greeks. It is worth noting that in the Bible, although it allows the concept of slavery, there is the idea of equality, ‘There is neither Jew, nor Greek, slave nor free, male nor female” This universality exists in the Kingdom of God, according to Vincent, and not in that of man. It seems rather strange to think of human rights as excluding the very humanity they are meant to protect.

The difficulties experienced by the international community in establishing effective legal instruments to achieve gender equality, and to have states accept these obligatory clauses and to promote these in their own domestic systems, continue to be an obstacle in the course of feminist intervention. Even with acceptance, states still have to be reminded of their obligations.

The Future of Feminism

Can feminism be viewed as a viable school of thought that can be relied upon? What can be considered as a main obstacle in giving feminism a greater force is masculinity. The subject of feminism is about women and appears to concern itself with the political, social and cultural experiences of women. Where do we fit the male in this debate, masculinity therefore, is a hindrance to feminism. As long as we associate masculinity or femininity with history and culture it cannot be deemed worthy or relevant as a practice or attitude for feminist use.

The position of women is regressing. Perhaps not legislatively, but socially. The reasons for which does not include men. It was not men who ‘voluntarily stampeded towards the creeping tyranny of needless plastic surgery and a pathological obsession with grooming.’ In her book, Enlightened Sexism: The Seductive Message that Feminism’s Work is Done, Susan B. Douglas explains that ‘The dumb blond, narcissistic ‘real housewives,’ cat-fighting, wedding obsessed, baby-obsessed stereotypes in the media mask and justify this inequality, as does the relentless blitzkrieg against women with power by the pit bulls of talk radio and cable TV news.’

So the question arises, is feminism dead? Is this a postfeminist era? In her book, ‘The Future of Feminism’, Sylvia Walby disagrees with this notion. She substantiates her stance with evidence of contemporary feminism. She rightfully suggests that feminist projects are not always labelled as feminist. The book illustrates the future of feminism as a global wave, on this future depends the future of gender inequality and social inequality in general.


‘Feminism is hated, because women are hated. Anti-feminism is a direct expression of misogyny; it is the political defence of women hating.’ Perhaps it is the extent of Andrea Dworkin’s statement suggests that leads one to believe that this was only applicable in the past and has no relevance to the present. However, as long as there exists a group of people who think it shameful to be called a feminist, this quote will seem to be true. In this essay, we have seen how the legal system has contributed to the prevalent gender inequality and how it remains androcentric to this day. We might not see the day that the entire legal system can be called a feminist system, however this is what we must strive to achieve. Because it is simply unacceptable in this era to have an anit-feminist legal system, which might not oppress women per se, but does not effectively protect them and their specificities.

Educating the society is very much the first step. Laws and legal systems aim to serve the society and will do what is thought as necessary to sustain the traditions and culture of that society. Furthermore, we have seen that even with the implementation of laws promoting equality, if the society is not readily accepting of these laws, they will exist without effect. Gloria Steinem has very aptly stated that in our present society, ‘though we have the courage to raise our daughters more like our sons, we’ve rarely had the courage to raise our sons like our daughters.’

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