Feminist legal theory

Feminist Legal Theory

Feminist legal theory is based on the belief that the law has been fundamental in women's historical subordination. The project of feminist legal theory is twofold. First, feminist jurisprudence seeks to explain ways in which the law played a role in women's former subordinate status. Second, feminist legal theory is dedicated to changing women's status through a reworking of the law and its approach to gender.

Feminist activists campaign for women's rights – such as in contract law, property, and voting – while also promoting bodily integrity, autonomy, and reproductive rights for women. Feminist campaigns have changed societies, particularly in the West, by achieving women's suffrage, gender neutrality in English, equal pay for women, reproductive rights for women (including access to contraceptives and abortion), and the right to enter into contracts and own property. Feminists have worked to protect women and girls from domestic violence, sexual harassment, and sexual assault. They have also advocated for workplace rights, including maternity leave, and against forms of discrimination against women. Feminism is mainly focused on women's issues, but author Bell Hooks and others have argued that, since feminism seeks gender equality, it must necessarily include men's liberation because men are also harmed by sexism and gender roles

MEANING OF FEMINISM AND IT’S VARIOUS LEGAL THEORIES:

Feminism is a collection of movements and ideologies aimed at defining, establishing, and defending equal political, economic, cultural, and social rights for women. This includes seeking to establish equal opportunities for women in education and employment. A feminist advocates or supports the rights and equality of women.^[3]

Feminist theory, which emerged from feminist movements, aims to understand the nature of gender inequality by examining women's social roles and lived experience; it has developed theories in a variety of disciplines in order to respond to issues such as the social construction of sex and gender. Some of the earlier forms of feminism have been criticized for taking into account only white, middle-class, educated perspectives. This led to the creation of ethnically specific or multiculturalist forms of feminism.

The four main strands of feminist jurisprudence

1.     Liberal Feminism: Liberal feminism is not a strand of feminism so much as it is liberalism applied to women. Liberal feminists believe that laws, rights and freedoms should apply in the same way to men and women. It is associated with ideas of formal equality and equality of opportunity.

2.     Radical feminism: Radical feminists believe that sex differences (i.e. differences between men and women) are more important than any other personal identity (i.e. social class, race or ethnicity). They embrace the idea of an essential sex difference and seek to explore repressed aspects of women's culture, values etc. Catherine Mackinnon is commonly associated with radical feminism. She has argued that the law in general, and traditional legal theory, is 'male' and that legal reasoning enforces men's domination over women. She wishes to invert this. Radical feminists believe that the rule of law and the values of gender neutrality, objectivity and formal equality mask the fact that they will always disadvantage women - i.e. the law on provocation as a defence to murder is shaped around male experiences of violence, not female (this can be a major problem, especially in relation to cases where a woman has been subject to domestic violence and kills her partner). Radical feminists argue for changes in the law and special treatment to deal with the inequalities of power, especially with regards to pornography, sexual harrassment and rape.

3.     Post Modern Feminism: Post modern feminists engage with the philosophical rejection of grand theories, such as those within traditional jurisprudence. They are instead concerned with multiple identities and subjectivities. Post modern feminists are interested in the socio-legal construction of legal subjects and the categories of sex and gender, masculinity and feminity. Post modern feminists are concerned with the law's role in constructing, underpinning and maintaining sex and gender. They are interested in discourse and deconstruction - i.e. taking apart how theories are constructed and developed.

4.     Cultural Feminism: Cultural feminism shares many commonalities with post modern feminism. Their focus is on the celebration of women's difference. They wish to move beyond standard 'rule of law' values, such as gender neutrality and formal equality (unlike liberal feminists), and are concerned with questioning the very idea of gender neutrality. Like post modern feminists, cultural feminists are also concerned with the construction of the legal subject (i.e. is it useful to have equality in respect of familial relationships, or should we use a different approach based on the different experiences of men's and women's - and other women's - lives?). Cultural feminists are also interested in the way that they law may implicitly reflect a male point of view, for example in the law of provocation, rape, or the 'reasonable man' test. They are also interested in the effect of the constitution of the legal subject as male (e.g. the 'reasonable man' - if judges can't imagine women unless stripped of their gender, we need to address this). Cultural feminists are also interested in critiquing legal methods and values as male, and argue for a contextualised approach to the law.

THE INTERRELATIONSHIP BETWEEN FEMINIST LEGAL THEORY

AND FEMINIST LAWMAKING

During the century preceding the 1960s, there had been substantial efforts to change the law respecting women's rights in the United States. The women's suffrage movement fought for inclusion of sex in the text of the Fourteenth Amendment; Myra Bradwell fought for the right to be admitted to the bar under the Privileges and Immunities Clause of the Fourteenth Amendment; many litigants and lawyers sensitive to issues of sex discrimination raised legal issues concerning women's equality; and a major and finally successful effort to pass the Nineteenth Amendment to the Constitution gave women the right to vote.

In India...

In the 1960s, a "second wave" of an active women's rights movement developed from the civil rights struggle, leading to renewed efforts both to change the law so as to abolish sex discrimination and to reshape the legal profession so as to integrate women within it.

This effort, led by a new generation of women's rights attorneys, manifested the interrelationship of theory and practice.

The litigation efforts that followed, which posed issues of equal protection in a host of are as such as Social Security, pregnancy discrimination, and parental  leave, as well as activist efforts around the Equal Rights Amendment, raised important arguments about the nature of gender which laid the foundation for feminist legal theory. Although the presence of women teachers in the law schools had a huge impact in mobilizing, energizing, and supporting a younger generation of women entering the legal profession to do this work, the theories of equality and the federal Equal Rights Amendment emerged primarily from the practical demands of activist efforts at lawmaking.

Today, feminist legal theory has evolved into four major schools:

formal equality theory, "cultural feminism," dominance theory, and post-modem or anti-essentialist theory.13 Formal equality theory, grounded in liberal democratic thought, argues that women should be treated the same as men, while cultural feminists emphasize the need to take account of "differences" between men and women. Dominance theory sidesteps both of these approaches, focusing instead upon the embedded structures of power that make men's characteristics the norm from which "difference" is constructed. Anti-essentialism, by contrast, contends that there is no single category "female," pointing instead to the varying perspectives resulting, for example, from the intersection of gender, race and class. The last three ap-proaches are all "theoretical" critiques of formal equality which emerged from the contradictions and political struggles that developed in the course of efforts to implement formal equality in practice and addressed the limits of formal equality in redressing sex discrimination.

The emergence of cultural feminism or "difference" perspectives in the law were largely shaped by efforts to understand the uniquely female experiences of pregnancy and motherhood. For example, the historical failure of the Supreme Court's equality jurisprudence to address

issues of pregnancy as implicating issues of gender equality 4 had an enormous impact on women's lives and the law. In response,

the Pregnancy Discrimination Act of 1978 defined pregnancy discrimination

as sex discrimination under Title VII 15 and generated renewed attention to the notion of "difference" in a variety of contexts.

In contrast, dominance theory presented an important theoretical framework within which to understand the harms of violence against women in areas such as domestic violence, rape, sexual harassment, and pornography. Formal equality (or at least a "gender complementarity" theory of formal equality) was not adequate to analyze these harms, experienced almost exclusively by women, because it failed to address the patriarchal structures of power that led to and perpetuated them. Thus, dominance theory emerged from efforts to grapple with the reality and experience of male dominance and privilege in

these areas. Finally, anti-essentialist or post-modern feminism developed from challenges to a notion of a single feminist legal theory and perspective and articulated the need to account for the wide range of feminist perspectives that emerged from women of color, issues of ethnicity, problems of immigrant women, and cultural differences. 16 For example,

Kimberl6 Crenshaw criticizes feminist legal theory's failure to reflect African American women's experience of rape, 7 while Paulettediscrimination that is motivated by both sex and race. 8 This approach has emphasized the importance of storytelling, both as a way to bring diverse experiences into the law and as a way to broaden the legal descriptions of experience that are translated into law. 9 This theoretical perspective challenges us to address the intersections of race, gender, ethnicity, class, sexual orientation, age, and disability, as well as to explore what commonality might mean in coalition efforts. It also challenges us to move beyond the telling of stories to more substantive change.

There are many examples of how the spiral from practice to theory and back to practice has operated. For example, feminist practice efforts to argue pregnancy as an issue of gender equality led to both practical law reform strategies such as the Pregnancy Discrimination

Act and feminist legal scholarship on these issues. A variety of perspectives

were developed by Sylvia Law,20 Herma Hill Kay,2' Wendy Williams,2 and Lucinda Finley,' among others, and were reflected in public disagreement and debate in the "Cal Fed" case, in which feminist groups filed opposing briefs about whether pregnancy disability should be given "special" treatment not afforded to other temporary disabilities.24In short, feminist legal theory has highlighted the issue of gender in law, and the range of feminist legal theories that have developed continue

to deepen our understanding of the complex interrelationship between gender and law. But it is important to appreciate the critical way in which feminist legal theory emerged from practice, and the way in which new theoretical insights formulated by litigators and academics

continue to reshape practice. Indeed, feminist legal theory, understood generically, has been the intellectual means for argument and debate about issues of equality that first emerged in law reform practice and continue to resonate both in practice and in the world at large.

This interrelationship is inevitable because the worlds of theory and practice in this area of the law are inextricably linked. An unusual number of feminist legal theorists and academics have a background in practice, particularly on issues of gender.' Many continue to work as scholar-activists and cultural commentators on a range of issues affecting gender and law-as lawyers arguing cases, drafting legislation, writing amicus briefs, serving as reporters to state and federal task forces, or commenting to the media-or have moved among these roles at different periods of their professional lives.

Theory and practice are also inextricably linked in this area because of the close proximity between issues of life and law. Anita Hill's challenge to Clarence Thomas's Supreme Court appointment, for example, highlighted more than a decade of litigation and scholarship on sexual harassment and resulted, in turn, in the further refinement of feminist theory. 7 The O.J. Simpson case brought similar work on doifmestic violence and intimate femicide to public attention and, in turn, generated feminist analysis.' Current debates concerning President Clinton, Paula Jones, and Monica Lewinsky again bring issues of feminist"theory" to the fore. In short, feminist practice and theory concern issues of daily life-how women and men live, work, and relate.

These real-life issues engage and galvanize public attention and then generate law reform efforts, such as the effort to educate Congress about sexual harassment in the Clarence Thomas confirmation hearings,

which in turn generate more theory. And the spiral continues, as, for example, the tremendous amount of sexual harassment litigation that arose after the Hill-Thomas hearings led to the Supreme Court's series of decisions in 199829 and resulted in richer and more nuanced theoretical exploration among feminist legal scholars.

Nineteenth and early twentieth centuries

First-wave feminism was a period of activity during the nineteenth century and early twentieth century. In the UK and US, it focused on the promotion of equal contract, marriage, parenting, and property rights for women. By the end of the nineteenth century, activism focused primarily on gaining political power, particularly the right of women's suffrage, though some feminists were active in campaigning for women's sexual, reproductive, and economic rights as well.

Women's suffrage began in Britain's Australasian colonies at the close of the 19th century, with the self-governing colonies of New Zealand granting women the right to vote in 1893 and South Australia granting female suffrage (the right to vote and stand for parliamentary office) in 1895. This was followed by Australia granting female suffrage in 1902.

In Britain the Suffragettes and the Suffragists campaigned for the women's vote, and in 1918 the Representation of the People Act was passed granting the vote to women over the age of 30 who owned houses. In 1928 this was extended to all women over twenty-one. Emmeline Pankhurst was the most notable activist, with Time naming her one of the 100 Most Important People of the 20th Centurystating: "she shaped an idea of women for our time; she shook society into a new pattern from which there could be no going back." In the U.S., notable leaders of this movement included Lucretia Mott, Elizabeth Cady Stanton, and Susan B. Anthony, who each campaigned for the abolition of slavery prior to championing women's right to vote. These women were influenced by the Quaker theology of spiritual equality, which asserts that men and women are equal under God. In the United States, first-wave feminism is considered to have ended with the passage of the Nineteenth Amendment to the United States Constitution (1919), granting women the right to vote in all states. The term first wave was coined retroactively to categorize these western movements after the term second-wave feminism began to be used to describe a newer feminist movement that focused as much on fighting social and cultural inequalities as political inequalities.

During the late Qing period and reform movements such as the Hundred Days' Reform, Chinese feminists called for women's liberation from traditional roles and Neo-Confucian gender segregation. Later, the Chinese Communist Party created projects aimed at integrating women into the workforce, and claimed that the revolution had successfully achieved women's liberation.

According to Nawar al-Hassan Golley, Arab feminism was closely connected with Arab nationalism. In 1899, Qasim Amin, considered the "father" of Arab feminism, wrote The Liberation of Women, which argued for legal and social reforms for women. He drew links between women's position in Egyptian society and nationalism, leading to the development of Cairo University and the National Movement. In 1923 Hoda Shaarawi founded the Egyptian Feminist Union, became its president and a symbol of the Arab women's rights movement.

The Iranian Constitutional Revolution in 1905 triggered the Iranian women's movement, which aimed to achieve women's equality in education, marriage, careers, and legal rights. However, during the Iranian revolution of 1979, many of the rights that women had gained from the women's movement were systematically abolished, such as the Family Protection Law.

In France, women obtained the right to vote only with the Provisional Government of the French Republic of 21 April 1944. The Consultative Assembly of Algiers of 1944 proposed on 24 March 1944 to grant eligibility to women but following an amendment byFernand Grenier, they were given full citizenship, including the right to vote. Grenier's proposition was adopted 51 to 16. In May 1947, following the November 1946 elections, the sociologist Robert Verdier minimized the "gender gap," stating in Le Populaire that women had not voted in a consistent way, dividing themselves, as men, according to social classes. During the baby boom period, feminism waned in importance. Wars (both World War I and World War II) had seen the provisional emancipation of some, individual, women, but post-war periods signaled the return to conservative roles.

Mid-twentieth century

By the mid 20th century, in some European countries, women still lacked some significant rights. Feminists in these countries continued to fight for voting rights. In Switzerland, women gained the right to vote in federal elections only in 1971,[48] and in the canton of Appenzell Innerrhoden women obtained the right to vote on local issues only in 1991, when the canton was forced to do so by the Federal Supreme Court of Switzerland.[49] In Liechtenstein, women were given the right to vote in 1984 by Liechtenstein women's suffrage referendum, 1984. Three prior referendums held in 1968, 1971 and 1973 had failed to secure women's right to vote.

Feminists continued to campaign for the reform of family laws which gave husbands control over their wives. Although by the 20th centurycoverture had been abolished in the UK and the US, in many continental European countries married women still had very few rights. For instance, in France married women received the right to work without their husband's permission in 1965.[50][51] Feminists have also worked to abolish the "marital exemption" in rape laws which precluded the prosecution of husbands for the rape of their wives.[52] Earlier efforts by first wave feminists such as Voltairine de Cleyre, Victoria Woodhull and Elizabeth Clarke Wolstenholme Elmy to criminalize marital rape in the late 19th century had failed,[53][54] this was only achieved a century later in most Western countries, but is still not achieved in many other parts of the world.[55]

French philosopher Simone de Beauvoir provided a Marxist solution and an existentialist view on many of the questions of feminism with the publication of Le Deuxième Sexe (The Second Sex) in 1949.[56] The book expressed feminists' sense of injustice. Second-wave feminism is a feminist movement beginning in the early 1960s[57] and continuing to the present; as such, it coexists with third-wave feminism. Second wave feminism is largely concerned with issues of equality other than suffrage, such as ending discrimination.[29]

Second-wave feminists see women's cultural and political inequalities as inextricably linked and encourage women to understand aspects of their personal lives as deeply politicized and as reflecting sexist power structures. The feminist activist and author Carol Hanisch coined the slogan "The Personal is Political", which became synonymous with the second wave.[9][58]

Second and third-wave feminism in China has been characterized by a re-examination of women's roles during the communist revolution and other reform movements, and new discussions about whether women's equality has actually been fully achieved.[42]

In 1956, President Gamal Abdel Nasser of Egypt initiated "state feminism", which outlawed discrimination based on gender and granted women's suffrage, but also blocked political activism by feminist leaders.[59] During Sadat's presidency, his wife, Jehan Sadat, publicly advocated further women's rights, though Egyptian policy and society began to move away from women's equality with the new Islamist movement and growing conservatism.[60] However, some activists proposed a new feminist movement, Islamic feminism, which argues for women's equality within an Islamic framework.[61]

In Latin America, revolutions brought changes in women's status in countries such as Nicaragua, where feminist ideology during the Sandinista Revolution aided women's quality of life but fell short of achieving a social and ideological change.[62]

Late twentieth and early twenty-first centuries

Third-wave feminism

In the early 1990s in the USA, third-wave feminism began as a response to perceived failures of the second wave and to the backlash against initiatives and movements created by the second wave. Third-wave feminism distinguished itself from the second wave around issues of sexuality, challenging female heterosexuality and celebrating sexuality as a means of female empowerment.[63] Third-wave feminism also seeks to challenge or avoid what it deems the second wave's essentialist definitions of femininity, which, they argue, over-emphasize the experiences of upper middle-class white women. Third-wave feminists often focus on "micro-politics" and challenge the second wave's paradigm as to what is, or is not, good for women, and tend to use a post-structuralist interpretation of gender and sexuality.[29][64][65][66] Feminist leaders rooted in the second wave, such asGloria Anzaldúa, bell hooks, Chela Sandoval, Cherríe Moraga, Audre Lorde, Maxine Hong Kingston, and many other non-white feminists, sought to negotiate a space within feminist thought for consideration of race-related subjectivities.[65][67][68] Third-wave feminism also contains internal debates between difference feminists, who believe that there are important differences between the sexes, and those who believe that there are no inherent differences between the sexes and contend that gender roles are due to social conditioning.[69]

Post-feminism

The term post-feminism is used to describe a range of viewpoints reacting to feminism since the 1980s. While not being "anti-feminist", post-feminists believe that women have achieved second wave goals while being critical of third wave feminist goals. The term was first used to describe a backlash against second-wave feminism, but it is now a label for a wide range of theories that take critical approaches to previous feminist discourses and includes challenges to the second wave's ideas.[72] Other post-feminists say that feminism is no longer relevant to today's society.[73] Amelia Jones has written that the post-feminist texts which emerged in the 1980s and 1990s portrayed second-wave feminism as a monolithic entity.[74] Dorothy Chunn notes a "blaming narrative" under the postfeminist moniker, where feminists are undermined for continuing to make demands for gender equality in a "postfeminist" society, where "gender equality has (already) been achieved." According to Chunn, "many feminists have voiced disquiet about the ways in which rights and equality discourses are now used against them."[75]

Criticisms of liberal and radical feminism

1. Liberal Feminism: Liberal feminism has been described as 'too individualistic' - it ignores structural and systemic patterns of exclusion and disadvantage which contribute to women's subordination. For example, a woman might be unable to make partner in a law firm because she is unable to take clients out for late night drinks - liberal feminists would explain this away as the product of individual choice. Liberal feminism has also been criticised for ignoring the extent to which social and political institutions (i.e. the family) shape individual preferences, attitudes and choice - it relies on a pre-social conception of the individual. It may also be criticised because it rests on liberal conceptions of freedom (i.e. freedom from unnecessary intervention by the state) and fails to take into account positive provision of goods and services, such as childcare.

Radical feminists have questioned liberal feminist's assertion that legal subjects can be constructed as gender-neutral - because women have been defined as 'different' by men, they say that equality arguments cannot succeed in obtaining justice for women. Post modern feminists have criticised liberal feminism's attempt to assimilate women to a standard set for men, by men - why should women aspire to a male norm, especially if we don't even know if the norm is right for men? Liberal feminism has also been critiqued by cultural feminists because the equality of rights approach fails to take account of the social, economic and cultural context, and the relationships between the individual and others which may harm their abilities to exercise their rights. Instead, liberal feminism focuses on the assumption of an individual asserting their rights against the competing and conflicting rights of others.

The final criticism of liberal feminism (and possibly the most important) is that it relies on the liberal political view of a distinction between the public and private spheres - if women are more commonly associated with the private sphere, they are not inside the public sphere of state intervention. For example, the problems of rape and domestic violence were very late to come on to the political agenda for this reason.

2. Radical feminism: Radical feminism may be criticised because it assumes a commonality of experience shared between all women regardless of differences (class, ethnicity, sexuality, disability etc.). Those who cannot identify with the common feeling may feel excluded. Also, some women have more access to 'male power' than others - a middle class woman will have more access to the legal process than a working class woman. Radical feminists see male power and dominance as near-perfect because of it's institutionalisation through law, etc. If this is the case, how can women ever transcend it? They have also been criticised for denying women's subjectivity and ability to speak about their experiences if they don't tie with radical feminism. Again, the final criticism of radical feminism is also possibly the most important one - radical feminists aim to replace male grand theory with female grand theory, but this will lead to falling in to similar traps of exclusion and marginalisation - is it worth replacing one abstract of law with another?

CONCLUSION

As we have shown, the interrelationship between feminist legal theory and legal practice is complex and striking. The interaction appears in the very genealogy of feminist legal theory, as practitioners grappled with women's legal problems and sought new substantive legal solutions for them. In this crucible, feminist legal theory was born and developed into the variety of more nuanced theories that exist today. Similarly, an active dialogue arose among feminist practitioners and theorists about the nature of the legal profession because they were confronted with the problems women encountered in the practice of law. This dialogue led to a flowering of theory when the formal equality approach that brought down the initial barriers to entry into the profession proved inadequate to address the continuing obstacles women lawyers faced, both informal and structural. Theories of feminist lawyering developed, largely out of cultural feminist approaches, and a critique of legal practice, heavily influenced by dominance feminism's challenge to the rules and structures taken as definitional of the profession. At the same time, feminist practitioners accumulated evidence about problems, lobbied for changes, and experimented with different ways in which to structure their own practice of law. In short, the interrelationship between theory and practice has generated and enriched feminist legal theory, resulted in innovative feminist lawmaking efforts, and produced important critiques of the legal profession.

The Female Body and the Law strives to move the focus of femrinist discussion away from sameness/difference and dominance/subordination to a pluralist, multiple, and open-ended notion of "differences." Although Eisenstein is not entirely successful in this regard, the care and attention she devotes to the question of sexual equality, her attempts to disentangle intricate philosophical problems, and the visionary glimpse she provides of a radically egalitarian world are all to be applauded.

Unfortunately, how we are to bring about this "equality that recognizes the richness of differences" (p 206) remains unclear. Eisenstein ultimately concedes that for the present, we must work within the confines of liberal law to achieve our goals, balancing "specificity" or "similarity"

approaches depending upon the circumstance: We are going to feel weary in this domain" (p 221), Eisenstein acknowledges, but perhaps we would feel less so if her analyses were themselves more tangible and straightforward. To those already familiar