Jurisprudence - Liberal Feminism - Essay Example

? JURISPRUDENCE - LIBERAL FEMINISM By Presented Jurisprudence - Liberal Feminism According to various modern feminists, accounting for matters with regards to oppression and domination of women, no single theory satisfies any of them, since, most of them, with the exception of the Grand Theory, are against the significance of general theories1. According to Deborah Rhode, feminism refers to a commitment to equality between genders as a focus on analytic approaches to concerns that reflect the concrete experiences of women2. For any theory to qualify as a challenge for gender subordination, it must be able to disagree with the other injustice patterns which it might be intersecting with3. Just as feminism, feminist jurisprudence cannot be explained by any single theory4. It is a family of different frameworks or view-points that are used in the analysis of the desirable or real relationship between gender and law5. In her view, Christine Littleton considers feminist jurisprudence as a collection of various attempts aimed at critiquing, changing and explicating the law for the sake of, and from women’s point of view6. Christine Littleton argues that, feminist jurisprudence aims at explaining women’s experiences and at the same time transforming the law. Despite the fact that feminist jurisprudence is considered by many to be practical, theorists such as Carol Smart borrows from Carl Marx ideology and argues that feminist jurisprudence is both practical and theoretical; it is brought about through the methodology that ensures theoretical insights are reflected in political action and that practical insights are shown on theoretical development7. As far feminist legal theories and feminist jurisprudence is concerned, there is one thing that stands out; both are aimed at the gender effects of legal practice and rules-particularly, how legal practices and rules affect women, and how law and legal practices define and reflect on gender identities. Additionally, both feminist theories and feminist jurisprudence focus on critiquing and exposure of the masculine nature of methods of law with a goal of changing both the methods and substance of law with respect to the goal of liberating women and feminist rejection of patriarchy. It must, however, be noted that-as had earlier been mentioned-feminist theorists have had different ideologies as to how legal transformation should be achieved and how it should be. Liberal feminism theorists have considered and argued that putting women into legal consideration and looking at them in the same breadth-equally-as men, may be the way to go about achieving the goal liberating women. Today, the debate is not only with regards to gender difference or sameness, feminist legal theorists have gone a step further and are more concerned with how to transform legal values, logic and the perception of justice. This notion of considering law as a neutral system of dispute resolution, regulation and justice,-a stand taken by liberal feminists-has been sharply criticized and rejected by contemporary feminist theorists, who have an issues with the concepts of objectivity, universalism, rationalism, and neutrality. They argue that defining law in the scientific sense without considering the political, moral and social reality is not the way to go; an argument also held by legal realist theorists. Those ideologies held by liberal feminists are disregarded and attacked on various grounds by other feminists. Accordingly, all of them argue that, the legal notions of objectivity and impartiality are just but perceptions that conceal the dominance and bias of the dominant groups-male. The argument is that, if sexes are considered unequal, there is neither un-gendered perspective nor reality8. In particular, the concept of objectivity has been attacked and it’s gendered nature exposed by MacKinnon, who argues that, the dominance shown by the male, is the most obstinate and universal system of power9. Similarly, the concept of impartiality has been criticized by Minnow, who asserts that, it is the facade taken by partiality so as to conceal prejudice from exposure10. At the same time, the idea of neutrality has also been criticized as position taken to enable cultural denial of positionality. Legal methods, in particular, the process of delimiting and defining legal boundaries from political issues, selecting precedents and the notion of relevance, have been criticized for their proclivity to maintain existing state of affairs and disregard new view-points11. Arguments have also been brought forward by feminist theorists with regards to the values that the concepts of objectivity, universalism, rationalism, and neutrality, and legal methods advance; particularly, they have argued against the false contrast between emotion and reason, irrationality and rationality that the law considers given. As a result, theorists such as Lynne Henderson have called for empathy with respect to judicial reasoning, asserting that, judges escape responsibility through the notion of legality12. Menkel-Meadow, therefore, calls for the inclusion of a concept of care in the judicial process13. The legal concepts of neutrality and objectivity are also under attack from postmodern feminists, who argue that, as much as they are unattainable, they are impossible, as well. The claim is that, objective truth does not exist. Additionally, these modern feminists also expose the discursive powers of law. As had earlier been mention, feminist jurisprudence is a legal philosophy that is based on economic, social and political equality of sexes14. Many debates on domestic and sexual violence, gender based discrimination and workplace inequality such as the Fourth Special Report by House of Commons Committee on Business and Enterprise are significantly dependent on the feminism jurisprudence. Using various approaches, feminist theorists have come up with several gender components and the effects of neutral practices and laws such as those affecting divorce, employment, rape, sexual harassment, reproductive rights and domestic violence15. Most importantly, one major beneficiary of the insights and analysis of feminist jurisprudence is gender based discrimination and workplace inequality16. It is the belief of feminists that the bias in the concepts of gender potential, social arrangements and human nature are as a result of a male-defined history, which does not reflect the role of women in structuring and making history. As a result, the structure of the law only reinforces more male values by making male characteristics the norm while female one a deviation from the norm. It is true that all feminist theorists agree on grounds of equality of men and women; however, feminist jurisprudence differs in certain aspect. As such, different schools of thought with feminism jurisprudence, including liberal feminism, cultural feminism and dominant feminism advance difference thoughts with regards to feminism. Liberal feminists hold the thought that, subordination of women is as a result of legal and social barriers that preclude or block their access to public arenas of economics and politics. According to liberal feminists, liberals need to follow their own ideologies with regards to equality and human rights; and that, they should demand for the equal treatment of women and men since; they believe that both men and women are fundamentally equal. It argued that, these theorists-liberal feminists-argue for the law to be gender-blind; they assert that the law should have any special assistance or restrictions with regards to gender. Liberal feminism as a school of thought, although considered obsolete as a theory, has made important contributions for women, at least as a legal strategy, on it demands for equal treatment. It can be said that, liberal feminism has enabled women to get near-equal employment opportunities, education and political opportunities. However, despite the liberal feminism strategy of equal treatment proving entirely fruitful with regards to challenging unreasonable classifications17 and laws that were explicitly discriminatory, it failed in areas where there was justification of unequal treatment based on alleged real differences. It is, however, difficult to apply this rule in cases such as pregnancy and problems mostly faced by women such as sexual and domestic violence, where there is no man as a reference point18. A more gruesome problem is the fact that, liberal feminism theory embraces the standard pegged on males and has failed to seek for transformation of law nor challenge legal ideologies; all they have asked for, is gender neutrality. The fact that laws may only be a reflection of male experiences and history; it does not help women as much to make laws gender-neutral; only women who are most marginalized and they experiences least reflect that of men are bound to benefit. Additionally, treating socially unequal individual equal is really not true equality, since it only works at exaggerating their disparities19. According to MacKinnon, the gender-neutral concept advance by the liberal feminist school of thought, in effect, get men to be preferred since the society empowers them before they become accountable; the law is, on the other hand, barred from taking the said preference into consideration since it would mean putting gender into consideration; given that, liberal feminist theory argues for the law to be gender-blind; they assert that the law should have any special assistance or restrictions with regards to gender20. Robin West considers liberal feminism as too individualistic and ignores systematic and structural patterns of disadvantage and exclusion, which contribute to the subordination of women21. For instance, a woman might not be able to be a partner in a firm simply because she cannot be able to take clients out at night for drinks; this according to liberal feminists is as a result of individual choice, not subordination or discrimination. Feminist theorists from other schools of thought have criticized and attacked the concepts of liberal feminism arguing that, it ignores the extent to which political and social institutions, such as the institution of marriage or family, contribute to shaping attitudes, choice and preferences. This is because; the concept of liberal feminism relies more on the pre-social idealization an individual. Additionally, its notion of resting the liberal ideology of freedom and its failure to take positive endowment of commodities such as healthcare has also been met with an equal measure of rejection and criticism. Feminist theorists from the radical feminism school of thought question the assertion by liberal feminists’ that legal subjects should be considered as gender-neutral. This, they argue that, this is because laws have defined and considered women as different from men, as such, any arguments about gender equality cannot help in seeking justice for women. The attempt by liberal feminism to make women conform to norms and standards set by men for men without knowing whether such standards in themselves are right, has also met sharp criticism from postmodern feminists. It is worth noting that, liberal feminisms’ equality approach to rights fails to consider economic, political and cultural aspects, and the relationship between women and other persons that may endanger their abilities to exercise their rights. This is because; liberal feminism is based on the argument that individuals assert their rights against conflicting and competing rights of others. Additionally, liberal feminism, according to, Carol Smart, relies more on liberal political notion of the distinction between private and public spheres, that women are not inside the public arena of state intervention, but rather are more associated with the private sector22. The United Kingdom government in its response to the Fourth Special Report by the Select Committee on Business and Enterprise in some way borrows from some insights of feminism jurisprudence and is largely influenced by the Liberal Feminism school of thought. For instance, the government is committed in ensuring equality of opportunity through tackling the gender pay gap and occupational segregation issues. This is in-line with liberal feminism concept of equality regardless of gender. The government considers equality of opportunity as a strong foundation for a strong economy that allows everyone to play their role23. In its endeavor to tackle and prevent discrimination and promote equality in the workplace and in education24, the report seems to be borrowing from both liberal feminism and feminism jurisprudence’s goal of liberating women and minimizing male dominance. In trying to address and challenge the pervasive attitudes regarding learning and work aspirations for girls and women; achievement or potential, and attitudes that undermine ability, new insight with regards to feminism theories and feminist jurisprudence25. However, this tends to conform to the concept of radical feminism26- which embraces the notion of essential differences in sex and aims at exploring the repressed and shelved aspects of women’s values and culture-and not liberal feminism. The government’s idea of introducing in parliament, an equality bill that would come up with modern, clear laws that would support the goal of an equal and fair society27 concurs and is in sync with Liberal feminists belief that laws, freedoms and rights should be fair to all sexes- be the same and be applied in a similar way to both men and women28. This shows a connection and association with the ideas of equality of opportunity and formal equality as advanced by liberal feminism. It is clear that, the report attempts to follow in the insights of Mary Wollstonecraft, who in her approach aimed at honoring women and their natural talents and insisted that, women should not be measured in the same breath as men based on men’s standards29. The report suggests that, the proposed legislation should endeavor to ensure that women and girls are able to make choices about work, education and careers without being concerned about social stereotypes with respect to women’s work which may deter them from choose careers that have traditionally been considered male-preserve. This will in turn ensure that no work or occupational opportunities are closed for women and that there is no occupational segregation thus allowing women to compete for jobs in the labor market that utilizes their talents, potential and experience30. In trying to enhance and encourage equality of work opportunities and education, the report asserts that good practice guidance, new training materials, and specialist career advice for teachers will help challenge stereotypical views with regards to careers. This is a new insight in as far as feminism theories are concerned, since it deviates a little bit away from the usual feminism ideology of transforming the law to ensure equality and end patriarchy. However, according to Christine Littleton, this may not be an emergent insight after all31; learning focusing on work and careers transforms women’s life by providing them with new opportunities to learn about, experience and helps them to be ready to take up occupations considered as non-traditional. This conforms to concepts of feminist jurisprudence which Carol Smart argues that both practical and theoretical32-borrowed from Carl Marx’s ideology. It is argued that feminist jurisprudence attempts to critique, change, and explicate the law for the sake of, and from women’s point of view, with the aim of changing both the methods and substance of law with respect to the goal of liberating women and feminist rejection of patriarchy33. This report, however, tends to offer new insight with regards to the goal of liberating women and rejecting patriarchy; it proposes the use of “Children’s Plan”, which is concerned with presenting young people with more challenging and exciting education in career. This would be particularly essential in helping children open their minds to various ideas and question or challenge traditional career and learning routes, thereby fulfilling the feminist theorists’ goal of transforming and utilizing women’s talents, skills, and experiences. Additionally, overcoming the challenges posed by gender stereotypes, celebrate diversity and promote equality of opportunity, the report suggests the use of appropriate role models, work placements, tester sessions and positive action activities34. There is emphasis on encouraging women to consider taking senior positions in sectors considered traditionally reserved for men, by taking training classes in no-traditional fields. Feminist theories and feminist jurisprudence have solely focused on ending patriarchy and altering laws to enhance the goal of liberating women. The Fourth Special Report offers new insight and concern that regards feminism, apart from occupational and educational segregation. The report assert that, there is need for feminist theories to consider tackling the issue of male dominance of professional and managerial jobs by men in sectors considered as female dominated-horizontal segregation. However, increasing the number of apprentices will not, in any way help women. The report acknowledges the insufficient opportunities for training women in non-traditional occupations and is similarly concerned with the steps taken in dealing with occupational segregation, particularly, with regards to the problems facing older women35. It is clear that liberal feminism and feminism jurisprudence are both aimed at the gender effects of legal practice and rules-particularly, how legal practices and rules affect women, and how law and legal practices define and reflect on gender identities. Additionally, Liberal feminism theorists have considered and argued that putting women into legal consideration and looking at them in the same breadth-equally-as men, may be the way to go about achieving the goal of liberating women and feminist rejection of patriarchy36. This is a sentiment that the report seems to have adopted and hope to enhance by urging the government to put trade unions and employers to task by tasking them with ensuring that skills and experience are better used, thereby, ensuring better development of opportunity for women. The report has been mostly influenced by the concepts of both liberal feminism and feminism jurisprudence, while at the same time it has contributed new insight and opinion regarding the how best feminism theorists can best utilizes practicality and real life situations in tackling male dominance or patriarchy, and ensuring that the goal of women transformation and legal, social and cultural values is achieved. Bibliography Barlett, Katherine T., ‘Perspectives in Feminist Jurisprudence’ in Betty Taylor et al. (ed), Feminist Jurisprudence, Women and the Law: Critical Essays, Research Agenda and Bibliography (Rothman & Co 1999), 3. Henderson, Lynne N., ‘Legality and Empathy’ in P. Smith (ed), Feminist Jurisprudence (Oxford University Press 1993), 244. Littleton, Christine A., ‘Book Review; Feminist Jurisprudence: The Difference Method Makes’ (1989) 41 Stanford Law Review, 725. MacKinnon, Catherine A., ‘Difference and Dominance: On Sex discrimination’ in Feminism Unmodified: Discourse on Life and Law (Harvard University Press no date), 32. MacKinnon, Katherine A., ‘Method and Politics’ in Toward a Feminist Theory of the State (Harvard University Press 1989), 114. Menkel-Meadow, Carrie, ‘Portia in a Different Voice: Speculations on Women’s Lawyering Process’ in Hilaire Barnett (ed), On Feminist Jurisprudence (Cavendish Publishing Limited 1997), 194. Minow, Martha, ‘Justice Engendered’ in Patricia Smith (ed), Feminist Jurisprudence (Oxford University Press 1993), 217. Musgrave, L. Ryan, ‘Liberal Feminism, from Law to Art: The Impact of Feminist Jurisprudence on Feminist Aesthetics’ (2003) 8 Hypatia, 214. Pappas, George D., ‘Feminist Jurisprudence’, 2006. Select Committee on Business and Enterprise, ‘Select Committee on Business and Enterprise Fourth Special Report’, 2008. Smart, Carol, Feminism and the Power of Law (Routledge 1989). ——, Feminism and the Power of Law (Routledge 1989), 69. Thornton, Margaret, ‘The Development of Feminist Jurisprudence’, 1998, 11. Twinning, William, General Jurisprudence: Understanding Law from a Global Pespective (Cambridge University Press 2008). West, Robin, ‘Jurisprudence and Gender’ (1988) 55 The University of Chicago Law Review, 3. Wollstonecraft, Mary, Vindication of the Rights of Woman: With strictures on political and moral subjects (1792), 2000. Read More