Can feminism be regarded as a single coherent approach to the study of law and social theory? A critical evaluation


Essay, 2016

15 Pages, Grade: 70


Excerpt

TABLE OF CONTENTS

Introduction

Law and Gender

The debate on Feminist Jurisprudence.

Schools of Feminist Jurisprudential thought and critiques
Liberalism and Marxism
Cultural feminism
Radical Feminism
Postmodernism

Critiques

Conclusion

Bibliography

Introduction

‘Feminist jurisprudence is a house with many rooms, in this it reflects the different movements in feminist thoughts’[1]. But what is found to be the common ground for feminist legal theorists, is the belief that the society and legal order is patriarchal[2].

The movement began in the late 1930’s when a large number of women studying law began to question and raise concern about the curriculum and the negligence regarding crucial issues of concern to women such as: rape, unequal pay, domestic violence, sexual harassment, gender discrimination. This movement led these new groups of thinkers to bring forth important issues concerning women and undertake litigation on their behalf, to protect and propagate their interests[3]. Feminism seeks to understand and analyse the construction and maintenance of patriarchy and the contribution of law in doing so, in order to undermine it and ultimately eliminate it.

Law and Gender

Gender is an increasingly fundamental area of debate around law[4]. It is a questionable matter how something so vital to the organization of the social structure has barely been the ‘central focus in the theoretical armory of law’[5].

For majority of its history, law has upheld ‘male privilege and female subjection’. As the abundant evidence indicates law supporting ‘patriarchal social order’ in which women were portrayed as different from men occupying the different social level, or worse as inferior to men, and therefore holding that position in the society. The norms reflected an urgent need for addressing these issues, upon being married, a women’s identity disappeared from under the radar, ‘under the common law doctrine of coverture’ a wife’s personality was ‘legally absorbed’ or merged with her husbands[6]. Until the late 19th and early 20th century in the field of legal education and practice, women were ‘outsiders’ they were excluded from the developing legal knowledge and practice on the idea that the law was a masculine activity[7].

The debate on Feminist Jurisprudence.

The objectives of all feminist scholars are directed continually towards analyzing, understanding and eliminating gender discrimination and inequalities supported by the law, moreover examining the conditions and experiences of women in law and the society. The functions of the society, law and the legal systems and the significant implications they have on women’s equality is one of the most vital debates feminists are involved in, challenging the perceptions and addressing the requirement for the reconstruction of the norms, additionally addressing the difference gender makes, the differences and equality. The question of ‘gender’ remains the central focus of analysis for feminist thinkers and is fundamental in all schools of thought[8].

Simone de Beauvoir posed the question ‘what is a woman?’, in her very influential work ‘The Second Sex’, Beauvoir answers this question, stating: “She is the incidental, the inessential as opposed to the essential. He is the subject, he is the absolute-she is the other.”[9]

The thought of women being the ‘the other’ represents the heavy impact of language and its analysis, the use of certain language determines a ‘primary’ and ‘subordinate’ characteristic. In this view, a woman is reflected or is made to be the second or inferior sex than males. Beauvoir focuses on the fact that there is a flaw in the social construction of individuals, and how language has an important impact on the characterization of women in this manner[10].

Schools of Feminist Jurisprudential thought and critiques

Liberalism and Marxism

For a long time liberalism has been dominating the political and legal character of the western democratic society. The central concepts of liberalism are ‘rationality, individuality, equality and liberty’[11]. Liberty mainly from interference from the others as well as the state, liberalism is founded on emphasising the importance of protecting the ‘private spheres of life’ which should not be the interest of the state, and that the rule of law must constraint the powers of the state.

Liberalism prioritises an individual’s freedom, as well as freedom from any limitation of a political , legal or economic nature. This school of thought reinstates the concept of ‘individual autonomy and rationality’[12], and this concept demands that each citizen should be given equal respect, moreover equality between people is stressed upon, it is critical that no group of individuals should be so privileged that it restricts the freedom of others[13]. Another fundamental of liberalism is the idea of enforcing restraints on any interferences by the state in an individual’s ‘sphere of liberty’[14].

Critiques to legal liberalism contradict the success of formal equality as adequate or good, this critique brings out the debate on the traditional inferior treatment of women, categorising them as ‘carers’ or ‘possessions’ , examples such as denying married women a solution for martial rape, inequality in relation to getting access to divorce and being denied the right to self-defence against domestic violence, these instances exemplify the evident sexist and patriarchal nature of the society and the law[15].

Cultural feminism

Another viewpoint is that of cultural or difference feminism, this approach emphasise on recognising the physical, psychological and social differences between women and men, and demands the law and society to acknowledge these differences and adapt to them.

Cultural feminism goes into the depth of recognising these differences between men and women and cherishing this difference, while simultaneously examining the impact of ‘women’s difference’.[16] Cultural feminists such as Carol Gilligan, Nancy Chodorow and Luce Irigaray have further developed the understanding of how a women’s experiences are different from a man’s and what factors contribute to this.

In one of Gilligan’s most influential works in the foundation of cultural feminism: ‘In a different voice’ she accentuates how a cultural and societal detachment is upheld by a psychological disassociation’ and how ‘women’s voices were inconspicuously missing’ , her study on the difference in reaction to reasonable situations between a young girl and boy of similar ages and intellects is said to have a great impact on the theory[17]. Further, cultural feminist Luce Irigaray is based on her insistence of the necessity for women to attain individuality without losing her identity in a ‘phallocentric world’. Irigraray talks about ‘essentialism’ and the importance of highlighting the essence of what makes a woman[18].

Radical Feminism

The women’s movement and the new wave of women, confronting and standing up against conservative roles symbolised a radical approach in overcoming that identity. While liberal feminism works toward achieving modification of the law, Radical feminist are demanding that an in-depth restructuring of the society.[19]

While liberal feminism focuses on acknowledging the biological and psychological differences between the sexes while arguing their claim on equal rights and respect, radical feminism’s central focus is highlighting the dominance of men and the submission of women.

Sexuality is an important point of debate for radical feminists, they argue about how ‘men’s sexuality’ and their modes of expression are responsible for the inequalities faced by women[20].

This approach focuses on illustrating the impacts of the ‘patriarchal culture’ and is extremely critical of the structure of the society, challenging its very core.

In Catharine Mackinnon’s significant work ‘Feminism Unmodified’, she argues that the discussion should not be about the extent of difference and similarities between the sexes but attention must be drawn to what she calls ‘The real issue’ which she describes is the dominance of men and their power. She expresses that ‘discrimination, violence, prostitution and pornography’ are occurrences that are ‘unique to women’, and these experiences reflect the power of a man over a woman. Mackinnon’s states that her ideas are ‘truly feminist’ as they look through the real experiences of women, she critiques liberalism as one that ‘insists on equality’ and represents a ‘false ideology’[21].

Mackinnon’s work has been criticised by many as ‘reducing women’ and belittling them into sexual objects, moreover she is criticised for assuming the characteristics and trait of all women and portraying them in a limited way, which restricts the representation of women from different social backgrounds , cultures and age[22].

Postmodernism

In Elizabeth Spelman’s notable work ‘Inessential Woman’, she argues that from the time of Aristotle and through the time of contemporary feminists, the nature of women has been portrayed in the same limited manner, involving abundant assumptions that don’t include a sufficient portrayal of a woman experiencing oppression from different factors such as social class or race discrimination. Her thesis is founded on the importance of understanding the diversity between women and their situations and the struggle of being able to create a ‘satisfactorily coherent feminist theory’[23].

[...]


[1] Michael D. A Freeman and Dennis Lloyd Lloyd of Hampstead, Lloyd 's Introduction to Jurisprudence (9th edn, Sweet & Maxwell/Thomson Reuters 2014).

[2] Michael D. A Freeman and Dennis Lloyd Lloyd of Hampstead, Lloyd's Introduction to Jurisprudence (9th edn, Sweet & Maxwell/Thomson Reuters 2014).

[3] Michael D. A Freeman and Dennis Lloyd Lloyd of Hampstead, Lloyd's Introduction to Jurisprudence (9th edn, Sweet & Maxwell/Thomson Reuters 2014).

[4] Joanne Conaghan, Law and Gender (1st edn, Oxford University Press 2013).

[5] Joanne Conaghan, Law and Gender (1st edn, Oxford University Press 2013).

[6] Joanne Conaghan, Law and Gender (1st edn, Oxford University Press 2013).

[7] Joanne Conaghan, Law and Gender (1st edn, Oxford University Press 2013).

[8] Hilaire Barnett, Introduction to Feminist Jurisprudence (1st edn, Cavendish 2005).

[9] Simone de Beauvoir, Constance Borde and Sheila Malovany-Chevallier, The Second Sex (1st edn, Vintage Books 2011).

[10] Simone de Beauvoir, Constance Borde and Sheila Malovany-Chevallier, The Second Sex (1st edn, Vintage Books 2011).

[11] Hilaire Barnett, Introduction to Feminist Jurisprudence (1st edn, Cavendish 2005)121

[12] Hilaire Barnett, Introduction To Feminist Jurisprudence (1st edn, Cavendish 2005)123

[13] Hilaire Barnett, Introduction To Feminist Jurisprudence (1st edn, Cavendish 2005)121

[14] Hilaire Barnett, Introduction To Feminist Jurisprudence (1st edn, Cavendish 2005)121

[15] Hilaire Barnett, Introduction To Feminist Jurisprudence (1st edn, Cavendish 2005)127

[16] Hilaire Barnett, Introduction To Feminist Jurisprudence (1st edn, Cavendish 2005)143

[17] Carol Gilligan, In A Different Voice (1st edn, Harvard University Press 1993).

[18] Hilaire Barnett, Introduction To Feminist Jurisprudence (1st edn, Cavendish 2005)148

[19] Hilaire Barnett, Introduction To Feminist Jurisprudence (1st edn, Cavendish 2005)163

[20] Hilaire Barnett, Introduction To Feminist Jurisprudence (1st edn, Cavendish 2005)163

[21] Catharine A McKinnon, Feminism Unmodified (1st edn, Harvard University 1987).

[22] Hilaire Barnett, Introduction To Feminist Jurisprudence (1st edn, Cavendish 2005)173

[23] Elizabeth V Spelman, Inessential Woman: Problems of Exclusion In Feminist Thought (1st edn, Beacon Press 1988).

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Details

Title
Can feminism be regarded as a single coherent approach to the study of law and social theory? A critical evaluation
College
Kingston University London
Course
International law (LLB)
Grade
70
Author
Year
2016
Pages
15
Catalog Number
V436836
ISBN (eBook)
9783668798779
ISBN (Book)
9783668798786
Language
English
Notes
Submittted legal essay regarding feminist jurisprudence.
Tags
critically
Quote paper
Aishwarya Prabhu (Author), 2016, Can feminism be regarded as a single coherent approach to the study of law and social theory? A critical evaluation, Munich, GRIN Verlag, https://www.grin.com/document/436836

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