Tag: feminist

INTRODUCTION

The explicitness of doctrinal assumptions about differences at the turn of the century fairly clearly defined the early feminist project in law. Women were regarded as being appropriately excluded from the practice of law and other positions of public power due to their perceived biological or “natural” characteristics. They were confined to “private” or familial circles. The foundation of feminist legal theory also referred to as feminist jurisprudence, is the idea that the legal system has played a significant role in the historical subordination of women. Feminist legal theory has two goals in mind. First, feminist jurisprudence aims to illuminate how the legal system contributed to women’s historical subordination. Second, feminist legal theory is devoted to reworking the law and its treatment of gender in order to improve the status of women.

FEMINIST JURISPRUDENCE

A legal philosophy known as feminist jurisprudence is based on the political, economic, and social equality of the sexes. Feminist jurisprudence as a branch of legal scholarship first emerged in the 1960s. It has an impact on numerous discussions of gender-based discrimination, workplace inequality, and sexual and domestic violence. Feminists have uncovered the implications of seemingly neutral laws and practices using a variety of strategies. Feminist jurisprudence’s analysis and wisdom have been applied to laws pertaining to sexual harassment, rape, domestic violence, divorce, and reproductive rights. Rather than suggesting that women should be exempted from these laws and practices, or suggesting that the law itself should be changed to provide additional protections for women, many feminist thinkers point out how the sex-neutral language of the law belies gender-based disadvantages and discrimination, and that women, therefore, need to be provided with specific accommodations in the law so that they can level the playing field.

This type of legal feminism, which predominated until recently, focused primarily on equality. It presupposed that there were no legally significant differences between men and women, an emphasis that was determined by the numerous ways that the law historically both approved of and made it easier for women to be excluded from the public (and thus, overtly powerful) spheres of society. This exclusion was justified on the basis of difference, which was based on the idea that women’s particular biological role in reproduction required protection from the rigors of public life. Therefore, when significant numbers of women started to enter public institutions like the legal system, they sought to overthrow the ideology that had excluded them. Assimilation became the target, and equality became the established norm. The feminist project in law should adapt to this evolution because our perspectives on differences and the value we place on them have changed over time.

When such voices are heard, things like the current generation of diverse feminist legal theories can result. Feminist theorists present a variety of change-related strategies. Feminist-styled legal proposals aim to use the law to enhance the position of women. These proposals range from continued adherence to the equality model to concepts of accommodation and acceptance of “special” needs. Concepts of difference have been successfully introduced and broadly embraced by the larger legal community in some particular areas, such as the emergence of “battered woman’s syndrome.” However, in most areas of legal regulation, concepts that do not take into account or take into account differences are not easily overturned, and it is assumed that the law is appropriately gender-neutral, at least in theory.

RELATION WITH LAW

“Law” and “feminism” are two concepts that sound a lot alike to us. They both play important roles in our lives. The fact that they are connected is the most crucial fact, though. Both endeavor to guarantee gender equality in all spheres of life—social, political, and economic. Let’s first clarify what they mean in reality. The concept of “feminism” can be defined as the freedom to choose one’s identity without hindrance

Now, if we define “law” simply, we can say that it is a set of guidelines for behavior that are established by a supreme authority and have legal force. The main goals of the law are to uphold law and order, settle disputes, and defend individual rights and liberties. It might surprise you to learn that the word “law” comes from the Latin word “jurisprudential,” which means “knowledge of the law” or “skill in law.” The theoretical study of law is known as jurisprudence. Before the advent of law, people used to work or judge with a sense of moral principles and ethics, which is also a source of law. The common ground of law, in the words of great Juris, is the Salmond Philosophical Legal Theory. Even if you don’t know what jurisprudence means, the meaning of this word should be clear after reading the first three sentences of the text.

There has been a shift away from equality as one of the guiding principles of legal thought for many American feminist legal scholars. The dominant abstract principles that have supported business as usual at most levels of society are questioned by feminist theory in law, which also questions the status quo and the legal system’s alleged neutrality. But despite the fact that feminists agree on this fundamental first step, differences start to appear. While some scholars see positive changes resulting from a deeper analysis of women’s perspectives and experiences in the law, others maintain that things are not getting better for most women and things are not getting better for most women, despite claims to the contrary.

There is an unspoken trend in contemporary critical thought toward an overreliance on the speaker’s unique personality traits to validate discourse. This emphasis falsely promotes the notion that individuals are the agents of social action and change and conceals the numerous ways in which oppression occurs and is supported within the prevailing structures and ideologies of our society. It works by putting some discourse beyond criticism; discourse is regarded as authentic not because of the rhetoric’s nature but rather because of the personality of the speaker. For example, if we say that a woman’s speech is valid in feminist terms because she is a poor person, lesbian, or has disabilities, then discourse about issues relating to women and poverty, homosexuality, and disability is beyond criticism because the speaker cannot be faulted for being bourgeois, heterosexist, or nondisabled.

According to Section 14 of the Indian Constitution, equality is a concept that feminism and jurisprudence (the source of law) have collaborated on. There are many theories in the law, “feminist jurisprudence” being one of them. A legal philosophy based on the political and social equality of the sexes is known as feminist jurisprudence. It is predicated on the idea that the fundamental cause of women’s historical subordination has been the law. There are two components to feminist legal theory.

LEGAL THEORY OF FEMINISM

There are two components to feminist legal theory. First, feminist jurisprudence aims to clarify how the law contributed to women’s inferior status. Second, feminist legal theory aims to improve the status of women by reformulating the law’s treatment of gender. The fight against traditional law, which is largely patriarchal, is the focus of feminist jurisprudence. Focusing on the types of institutions and laws required to address the imbalance against women in society, it challenges the current legal status. Inequality in the workplace, gender-based discrimination, and sexual and domestic violence are all hot topics in feminist law.

Feminists have discovered gendered elements and implications of seemingly unrelated laws and practices using a variety of methods. Laws pertaining to sexual harassment, rape, domestic violence, divorce, and reproductive rights have all benefited from analysis and insight provided by feminist jurisprudence. Many feminists believed that history was written from a male perspective and did not reflect on the role that women played in shaping society and making history. Although feminist legal theory and feminist jurisprudence share a commitment to gender equality, they differ from one another.

FEMINISM IN INDIA

Feminism in India was actually started by men, in contrast to the western world. The first step towards feminism was the abolishment of sati by Raja Ram Mohan Roy and William Bentick, as well as widow remarriage by Ishwar Chandra Vidyasagar. Even though our constitution explicitly referred to equality, feminism changed as a result of rising “personal rights” and increased globalization. Leaders like Sarojini Naidu, Begum Rokeya, Captain Lakshmi Sahgal, Kittur Chennamma, Manikarnika, Kamini Roy, and Indira Priyadarshini Gandhi played a significant part in the rise of feminism in the Indian National Freedom Movement.

The theory of Austin, Hart, and Kelsen was criticized by many feminist authors. Authors like Carole Pateman, Catherine MacKinnon, Carol Gilligan, and Margot Stubbs questioned Austin, Hart, and Kelsen’s theories. The feminist movement or feminism has made issues like child marriage, failing to educate girls, and unequal pay for equal work and positions necessary.

The constitution has always been committed to protecting women, but the problem is that this is not always how it is actually applied. The scope is expanding with time, and the offences are being brought to light with greater sincerity. Only in this instance was rape properly interpreted and classified as one of the most heinous crimes. According to Justice Madan B Lokur, who made this statement in the ruling, rape is one of the most heinous crimes committed against a woman. It denigrates women. It injures a woman’s dignity and degrades her honor. Her personality is dwarfed, and she has less self-assurance as a result. It infringes on her right to life, as stated in Article 21 of the Indian Constitution. This ruling, which overturns the patriarchal laws that were once prevalent in our nation, was based strongly on the principles of equality and justice for women.

This article is written by Sanskar Garg, a last-year student at the School of Law, Devi Ahilya University, Indore.

INTRODUCTION

‘Femina’, a Latin word for a woman, is the root of the English word “feminist.” But what exactly does feminism suggest? Due to individual people’s views, there are various responses to this question. The fundamental definition of feminism is a compilation of movements to determine, create, and protect equal rights for women in the fields of economy, education, politics, and other fields, as well as social rights for women with equal possibilities. An advocate of feminism may be a male, woman, or transgender person because it is a gender equality ideology. What is feminism jurisprudence, though, is a completely different subject that needs to be addressed.

Feminist jurisprudence, commonly referred to as feminist legal theory, is founded on the idea that the legal system has played a significant role in the historical subordination of women. Feminist legal theory has two objectives. First, feminist jurisprudence tries to explain how the law contributed to women’s past inferior status. Second, feminist legal theory is dedicated to enhancing the situation of women through a revision of the law and its treatment of gender.

THREE MAJOR SCHOOLS

Feminism promotes equal rights for both men and women. Feminist legal systems differ from one another. There are three major schools of feminist jurisprudence –

1. Traditional or Liberal Feminism

It says that women are just as reasonable as men. Hence, they should also be given equal opportunities to make choices.

2. Cultural Feminist

In this type of school of feminism, the main focus is on the variances between the two genders. The thinkers appreciate those variances and propound that Women place more value on interpersonal connections, whilst males place more value on legal and logical abstractions. Giving women’s moral voices of compassion and communal ideals equal recognition is the aim of this school.

3. Radical or Dominant Feminism

The main focus of this school is on inequality. They propounded that the men dominated the women’s class and this results in the situation of gender inequality. Radical feminists see gender as a matter of power. Radical feminists admonish us to reject conventional methods that use maleness as their point of reference. They contend that women’s differences from men must be taken into consideration while constructing sexual equality.

APPROACHES TO FEMINIST PHILOSOPHY OF LAW

1. The Liberal Equality Theory

Liberal feminism is a particular philosophy that deals with achieving equality between men and women and primarily emphasizes the ability of an individual to end discrimination against women. Liberal feminists want to empower people to follow their intuition and use their skills to make men and women equal in the eyes of the law and society. Their views on freedom are the main distinction between modern liberals and bygone liberal feminism.  To attain equality in democratic liberal countries, a contemporary liberal feminist maintains that women’s freedom and political autonomy must be promoted. A former liberal feminist, on the other hand, asserts that feminism’s political duty is limited to opposing laws that treat men and women differently, and that they have already succeeded in this objective. Despite this catfight, their ultimate goal is to unite women together so they may speak up and create enormous amounts of awareness.

The Sexual Difference Theory

Arguments for gender feminism are included in the theory of sexual difference. It makes the case that the causes of women’s mistreatment are intertwined with nature, psychology, and culture. It claims that there are many ways in which the cultural traits associated with femininity are superior and more potent than those associated with masculinity and that men and women should thus weave their reasoned webs.

2. The Dominance Theory

Dominance feminism is a philosophy held by feminists that reject the perspectives of difference feminism and equality feminism. The feminists who scream for equality want women to be given systematic equal access to all social, cultural, and legal male privileges. Feminists, on the other hand, promote gender diversity and call for women to get distinct legal and social protection in order to make up for historical injustices. The dominance theory, which contends that male social power is the outcome of well-documented disparity between men and women, in some respects supports feminists who fight for gender discrimination. Dominance feminism condemns men’s concerted efforts for women’s subordinate status in society. It asserts that men physically, sexually, and socially dominated women. They subjugated women socially by objectifying them, enforcing patriarchal rules on them, and denying them any legal rights. In terms of sexual harassment, they threatened to force them into sex, used catcalls, took advantage of them at work, and shaped them into simple sex objects. According to a Hindu shloka, “naari taran ki Adhikari”—which means that males should physically abuse women more—a woman is deserving of being beaten. The term “dominance feminism” is sometimes used to refer to Catharine A. MacKinnon.

3. The Anti-Essential Theory

 A cluster of fundamental qualities that are both sufficient and necessary for objects to be identical might be referred to as essentialism. To further comprehend essentialism, it includes two steps: the first is summarizing the things inside a single concept in order to distinguish between objects by taking into account their distinctive parts, and the second is classifying them as belonging to that concept. A loose definition of feminist essentialism is the belief that all women share certain psychological and biological characteristics, such as attractiveness, sympathy, fostering, and supportiveness, which are the origins of the idea that all women are fundamentally the same. According to essentialism, every woman has the same innate qualities. Simple opposition to this presumption is anti-essentialism. Anti-essentialists reject the idea that the definition of women should be based on fixed characteristics like genetics and psychology since doing so prevents women from changing and makes it harder for society to recognize them as individuals.

4. The Post-Modern Theory

Other feminist views are unique from postmodern feminism. It starts with the assumption that contemporary feminists have overlooked acknowledging differences within each gender because they are too preoccupied with the distinctions between men and women. Furthermore, it contends that gender was created through talks based on perception, which we eventually absorbed as time went on. In addition to this, postmodern feminists assert that the main reason why there are different forms of patriarchy is because of the social traits of women. The intersectionality hypothesis, which aims to look at how social, biological, and cultural classes simultaneously interact with one another, was used to frame these opinions.

FUNDAMENTAL RIGHTS

When it comes to equality, our constitution has given us certain rights and clauses that preserve the environment of positivist equality. When read in conjunction with Article 12, Articles 14 and 15¹ represent the ideas of our constitution’s authors and further protect women against gender discrimination. According to the reading of Article 14 given the gender equality perspective, all people, including women, have an equal right to protection under the law throughout the Indian subcontinent. Men and women should be treated equally under the law and by the country under similar situations.

However, Article 15² shields women from all forms of prejudice. Clause 3 of Article 15 grants the State the authority to create any additional provisions for women and children in order to maintain the idea of equal protection of the law in situations where the same treatment would have been accorded but was not. This clause is recognized in light of the historical social and economic disadvantages faced by Indian women, which resulted in their reduced participation in the nation’s socio-economic activities on an equal basis. The main motivation for the provision is to give women a voice, end their socioeconomic disadvantage, and unquestionably empower them.

In the decision-making process, democracy unquestionably gives everyone an equal chance. Since they make up over half of the population and are free citizens, women are theoretically capable of resolving their disputes through democratic channels. However, they are ineffective participants in the democratic game because of socioeconomic factors and cultural norms. A pro-woman and anti-subordination interpretation of the Constitution and legislation must be adopted, and this provision was further developed in light of positive discrimination, given the drawbacks of the democratic process and the dangers of parliamentary majoritarianism.

The court discussed the need for regulations to stop the dominance analysis techniques that are present in our patriarchal society in the case of Bodhisattwa Gautama v. Subhra Chakraborty.³ A woman, in our country, unfortunately, belongs to a class or group that is in a disadvantageous position due to several social barriers and impediments and has, as a result, been the target of tyranny at the hands of men. The court held that certain laws help to ameliorate the position of women in society and that they are also very constitutionally valid as they come under the legitimate heading of positive discrimination, which is fundamental to our country’s founding principles.

DIRECTIVE PRINCIPLES OF STATE POLICY

Gender equality is likewise included in Articles 39(a)⁴ and 39(d)⁵ of the Directive principle of state policy. While the second article advocates equal compensation for equal work for men and women, the first article discusses the equal right of men and women to an adequate means of subsistence. Maintaining a balance between individualism and socialism is the basic tenet of the Directive principle of state policy. To address the issue of women in the postmodernist era, the DPSP has taken all necessary steps.

Due to their long-sightedness, the framers were able to consider the challenges that women would have faced as society’s patterns changed. To further bolster this claim, Article 51(a)⁶ discusses a clause that forbids actions that are disrespectful to women’s dignity. The idea that the constitution has disregarded the position of women is unavoidable when looking at the statutes collectively. Our constitution’s drafters undoubtedly made an effort to include as many clauses as possible that, if absent, would have led to discrimination.

CONCLUSION

Men and women have always been seen as separate from one another as well as having different social statuses and levels of authority. Through some clever contrasts, such as behavioral traits, women have been purposefully portrayed as the antithesis of men. For example, men are assumed to be competitive, rational, aggressive, intelligent, political, and dominant leaders, while women are assumed to be fragile, emotional, domestic, caretaker, and underlings. Every political and economic organization, from educational to religious institutions, to beauty standards and relationships, has consistently followed some variation of these presumptions. Sadly, the law is not an exception. As a result, cultures recognized the need for feminist jurisprudence, and in order to reach this goal, feminists stepped up, questioned male-insight laws or practices, provided examples of illegitimate patriarchy, and provided guidance on how to build “equality” for women globally.

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CITATIONS

¹ The Constitution of India 1950, Art 12.

² The Constitution of India, Art 15.

³ (1996) 1 SCC 490.

⁴ The Constitution of India 1950, Art 39(a).

⁵ The Constitution of India, Art 39(d).

⁶ The Constitution of India, Art. 51(a).

This article is written by Prerna Pahwa, a student at Vivekananda Institute of Professional Studies, New Delhi.