The Relevance of Feminism Movement - Essay Example

The relevance of Feminism Introduction: Feminist thought is centered around female equality with men. Marilyn French defines feminism as follows: “Feminism is the only serious, coherent, and universal philosophy that offers an alternative to patriarchal thinking and structures. Feminists believe….that the two sexes are (at least) equal in all significant ways, and this equality must be publicly recognized. They believe that qualities traditionally associated with women….are (at least) equal in value to those traditionally recognized.”1 The Feminist movement was born when Betty Friedan set out on her crusade to convince women that they were not obligated to accepted a male oriented view of gender inequality2. When the Feminist movement first commenced in the 1960s the major focus remained on achieving equality with men and feminist jurisprudence focused upon persuasive presentation to those in authority about the necessity to provide equal treatment to all individuals, defining social change as being centered upon providing equal treatment to similarly placed individuals, irrespective of their gender. From a legal and social perspective, the movement initiated the struggle of women to gain equality before the law, changing the structure of society as women ventured out into the workplace. This essay will set out to demonstrate how the notion of equality as mooted by feminist theories may not necessarily be adequate to advance the interests of women and the material inequalities that they may suffer from. Fighting for women to achieve equality with men may not necessarily redress the inequalities and advance their interests, since this equality approach to feminism is overly concerned with the personal issues surrounding identity. It does not address the root causes of inequality, which may be built into the framework of the law itself, hence without a change in the framework of the law, it may not be possible to advance the interests of women. Analysis: According to Janet Rifkin, “In the end, patriarchy as a form of power and social order will not be eliminated unless the male power paradigm of law is challenged and transformed.”3 This is the basic principle which must be addressed on the question of equal rights before the law for both men and women. Jurisprudence has remained a traditional male bastion with existing legal theories conditioned upon the premise of the “individual” as the philosophical basis for the legal system. Hence, the feminist movement itself and earlier struggles for equal rights by women were centered upon proving to the higher authorities that women deserved equal treatment, but this was still on the basis that they were individuals. The question that arises is – how relevant is such an approach in tackling the real issues women face and advancing their interests, when it is preoccupied with the subjective element associated with individual identity? For example, MacLaughlin points out that the liberal perspectives of law as a fair and just system that protects is rights of all individuals is based upon treating all persons indiscriminately and this system stresses individualism4 – but how can such a universal standard be defined in the context of differing constituencies and differing conceptions?5 While Mclaughlin supports the feminist view that the rights of women as individuals must be upheld, she does not view this as being exclusive from cultural recognition. In arriving at her conclusion, she first examines Rawls’ premise of the original position, where a society that has differing views about what constitutes the “good” in respect of an individual, will have a system of law in which certain areas exist behind a veil of ignorance where gender, age, beliefs or systems will not apply6. Rather, this neutral area will be one where rules derived are those intended to benefit the common good, based upon impersonal, impartial principles of law. This neutral area is derived through (a) identifying the rights necessary for the most basic level of liberty that is compatible with that required for others (b) social and economic equalities arranged in such a manner that they may benefit everyone and be open to all7. Rawls therefore presents a procedural model of political liberalism based upon this principle that a political system cannot be used to enforce one conception of good, but only to lay out a general, flexible framework within which individual differences are accommodated. Thus, according to Rawls, the rights that must be accorded under law is the right to live a good life but the law or the political system should not include the right to determine what that good should be.8 Dworkin presents this as the discontinuity analysis, whereby within a democracy, there are two separate areas – the private life where the individual has the right to determine what is good for him or her while the public sphere is a communicative area where individuals can discuss common problems and issues and arrive at a standard for the common good.9 As a result, the law may not enter into that area which is the private life of the individual, but may have the right to formulate laws to regulate common areas. Where women are however concerned, the focus upon upholding individual rights as practiced under the law may not be adequate to secure their rights, since the private area is often one where women suffer the most injustice, which may need to be redressed. From a feminist perspective, the application of liberalism to address women’s rights has failed to secure the rights of women, partly due to the differences in context of private and public spheres. In the interest of maintaining a practically neutral public zone where most varying beliefs can be accommodated, it is necessary to keep out everything that is private, however since most issues pertinent to women arise from this private and personal area rather than from the public sphere10, this in effect means that the law fails to effectively address the necessary problems that must be addressed in order to generate true equality in rights10. In fact, law does not even begin to operate within the proper context in which it must, to be effective for women and therefore, a mere focus on equating men to women as individuals may not adequately advance their interests. Catherine McKinnon has highlighted the inadequacy of the law to truly further the rights of women through the example of pornography which reduces women to the status of commodities, and therefore, does not serve their interests. In her struggle to ban pornography as demeaning to women, what stood in the way was the First Amendment right to freedom of speech and expression. Arguing on this issue, she appealed to the Minneapolis Zoning Commission as follows: “I suggest that you consider that pornography, as it subordinates women to men, is a form of discrimination on the basis of sex. ….You have the jurisdiction to make laws against forms of discrimination.”11 Catherine MacKinnon pressed for the curtailment of certain First Amendment rights through censorship, reflecting what has now become a widely debated feminist view of restriction of the rights to free speech and expression in such areas as pornography. In her view, presently it is certain powerful groups who are the only ones with the right to free speech and whose voices are heard, over and above the women and minority groups who have “been silenced by their powerlessness”12, therefore the role of Government and of jurisprudence cannot continue to be biased in favor of the powerful groups, rather the function of jurisprudence is to empower the minorities and the women. Thus, it may be seen that her views rise in opposition to the model of total freedom that has been espoused thus far, which is also protected by the First Amendment. She proposes that a new model of freedom of expression should be developed, within the parameters of which the First Amendment rights of certain powerful groups should be restricted, in order to bring about a more equitable distribution of such power of expression to women and minorities, who are the oppressed classes. She proposes restrictions on the First Amendment rights to speech, - so that all speech which is discriminatory, racist and demeaning to women becomes actionable under the law. She thus advocated that true equality could be achieved only through a curtailment of the First Amendment right to freedom of speech.13 McKinnon has raised an important point where women’s rights are concerned, i.e, the framework of the law is itself tailored from the male perspective and seeks to refrain from encroaching into private areas such as the sexual lives of women. Furthermore, to a great extent, the law does not intervene in certain areas where the right to freedom of speech and expression must be upheld. But as her views show, pressing for equality of women in the eyes of the law may in itself not be adequate to address and protect their rights. Feminism, if viewed purely from equal rights for women perspective, is essentially flawed and may not achieve the desired ends, since the very areas where women need the intervention and protection of the law, such as sexual matters, may be those areas that are deemed to rest in the private realm and therefore exempt from the intervention of the law. The law’s framework ocmprises public areas where it intervenes versus private spheres where more autonomy is tolerated and there is a lack of concern for oppression, which means that several problems that women experience in private areas and where they require legal assistance and equality before the law is largely denied to them, or is serious lacking in terms of effective redressal. As a result, so long as feminist theory seeks to push women to a position where they are equal to women without looking into the inherent flaws in the legal framework itself, it is unlikely to be effective in truly furthering the rights of women. Liberalism which forms much of the foundation of law and legal theory affords flexibility to individuals which is one of its good points, however the theories and the idea of what constitutes individuality are grounded in male experience which is falsely attributed to be the human experience14.It is the separatist thesis which is the driving principle behind this framework of law, wherein the basis for political and legal intervention by the State is based upon the presumption that every human being is a separate and autonomous individual. However, this is the male concept of self not the female concept, which is grounded in connectedness to other individuals rather than separateness, and therefore such intimacy and caring for other individuals should be a part of the legal system, rather than being derived from the male perspective of autonomy.15 Popular legal ethical theories such as utilitarianism and deontology are focused upon a universal standard of morality and ethical values, which are conditioned through a more rational and impartial approach which feminists refer to as a “justice view’ of morality16. However, Carol Gilligan was the main proponent of a different approach to ethics, in which she disagree with her teacher Kohlberg on the results of a study that they conducted in order to present participants with moral dilemmas and then evaluate how they arrived at their decisions on the right moral course of action17. Kohlberg used justice as the basis to evaluate their answers and explained the differences in the male and female answers as being the result of differences in the stages at which men and women were on the scale of moral and ethical development.18 But Gilligan proposed that the gender differences had arisen because there was no universal standard of judgment that could be applied to both men and women. She argued that the moral outlook of women was different and the justice standard of ethics was prevalent only because it was the view of ethics that had been advocated in a male dominated society and that such a universal standard of morality was no longer maintainable.19 She believes that a person’s moral orientation varies according to the gender – while men are oriented towards the value of justice, women are oriented towards the value of care. Gilligan links the differences in morality among the two genders as a function of the differences in gender socialization of males and females. Studies have shown that girls enjoy a close relationship with their mothers from an early age and develop feelings of emotional attachment, however in the case of boys, they must first achieve a gender identity that is separate and distinct from their mothers before they can develop as individuals in the emotional sense and in terms of their attachments.20 As a result of this gender differentiation boys come to value autonomy while girls come to value caring since they do not have to break away from their mothers in order to develop their own gender identities. Gilligan states that if a girl is brought up by her mother, there is a similar gender differentiation that takes place as a result of which the morality becomes one where the value of justice is emphasized over the value of care. The male justice view of morality has a standard of always doing the right thing even if it is at a great personal cost or requires the sacrifice of a loved one. However, the ethics of care on the other hand will lead a female to make moral decisions that will place the interests of loved ones over the interests of strangers, even if it does happen to be morally the right thing to do according to the male standards of morality. This may be seen to hold particular relevance in the field of law, because it raises the question of what should be considered morally right from the perspective of arriving at a judicial decision or evaluation of a moral problem in order to assess the degree of wrong doing of the person accused? Thus while Kohlberg related these differences in morality to differences in stages of development, Gilligan proposes that morality standards and perspectives are different for men and women21. Applying this in the context of feminist theory, which essentially presses for the recognition of women on an equal basis with men as individuals, there is a lack of recognition that the framework of the law itself is derived from a male perspective and may therefore, not serve the needs of women adequately or advance their rights. From the perspective of the moral basis of the law too, different standards have to be applied in the case of men as opposed to women. The notion of justice and punishment within the framework of the law is conditioned from the male perspective may not be similar to women, as pointed out by Gilligan; hence a system of law, justice and punishment which adequately serves the needs of men may not even begin to address the rights of women or to further their cause on the basis of their gender. For women, justice is a collective concept, taking into account the interests of loved ones and may not necessarily be an individualistic concept as mooted under male jurisprudence. As a result, feminism which has embarked on the struggle for equality for women, to raise women on par with women under the law may be largely irrelevant from the perspective of addressing the real needs of women and the framework of the law required in order to ensure that their rights are adequately served. Baer challenges the Rawlsian principle of equality on the basis of the male supremacy in law. She argues that for women to truly enjoy equal rights and for their interests to be advanced, they must in fact be accorded more rights, both in terms of a more equitable distribution of the domestic and child rearing traditionally considered to be within the female bastion, as well as in addressing the gender asymmetry that exists. She contends that applying a Rawlsian model of equality to such maintenance work will result in men shouldering more of these responsibilities, and it is only through strict sexual equality that the male supremacy in law can be addressed and equal rights be accorded to women.22 Feminist theory also tends to focus its efforts only in certain areas which are seem to be the province of women and where their rights must be fought for, especially in the employment arena, such as sex discrimination, equal pay with men and maternity rights. But as Morris and O’Donnell have pointed out, feminist perspectives cannot be limited to these areas, they must be applied to all aspects of employment law.23 By relegating feminist intervention only to specific areas such as those mentioned above, the major thrust of the intervention becomes centered around individualistic and subjective concerns such as for example, raising the status of women as equal to women on the basis of receipt of equal pay, or ensuring that women are not discriminated against on the job and prevented from taking leave on maternity grounds. However, the feminist perspective needs to be applied to all areas of the law on a collective laissez faire basis, revising the underlying structure and framework of the law in the first instance and then applying a feminist perspective to all areas, in order to truly address women’s rights. It is on this basis that Conaghan has argued that it is the collapse of the collective laissez faire as the traditional analytical framework of labor law, which has largely made it rather ineffective in truly addressing women’s rights24. She contends that the application of feminist theory, while questioning the traditional framework of the law as a male oriented one, has failed to focus upon the reconstruction of the law on a holistic basis. In her economic analysis of labor law, she illustrates that while the collective laissez faire ideology of the law may appear to be neutral, it may in practice have a hidden gendered agenda. Therefore, the attempts by feminists so far to focus on equality of women under the law runs the risk of reductionism, or the incorporation of a tendency to fight for men and women to be treated the same, irrespective of differences of gender, sex and race. At the base of feminist legal theory, there are two kinds of claims. On the one hand is the analytical claim that is basic to feminist theory. According to this view, which is geared from a sociological perspective, sex/gender is the subject of powerful social structure and discourse, therefore it forms one of the forces shaping institutions of society, including legal institutions25. The other approach is a normative one, from a political level, putting forth the proposition that “the ways in which sex/gender has shaped the legal realm are presumptively, politically and ethically problematic, in that sex/gender is an axis not merely of differentiation, but also of discrimination, domination or oppression.”26 As Conaghan has suggested, if the law is to be made truly applicable in the case of women and ensure that their rights are upheld, then it may be necessary to maintain a collective laissez faire ideology as the basis of the law, rather than seeking to make the issue of justice for women an elitist proposition that is not applicable on a wide ranging basis. Restricting the tenets of feminism to the notion of equality on the basis of gender ignores a whole plethora of other kinds of discrimination that may take place, for example on the grounds of race and gender, sometimes occurring simultaneously. Therefore, there is a need for the law to be constructed in such a manner that it may be applicable to address discrimination in a more wide ranging manner. As a result, it is necessary to introduce a feminist construction to the law, but to introduce this within the scope of the wider application of the law, rather than restricting it to gender alone. For example, in the context of the workplace, Morris has argued that collective bargaining can be an effective vehicle to ensure that the law brings about changes which are truly equitable to both men and women and can bring about real enhancement of the rights of women.27 The use of trade unions in the workplace and the improvement of the bargaining agenda can serve to bring about real changes that will benefit both men and women who are assuming domestic responsibilities. She points out that relegating these issues to a purely feminist corner leads to a presumption under the law that these are issues that apply only to women. The reality may however be that even men may be assuming domestic responsibilities and parental care responsibilities, as a result of which the law would not be equitable if it was purely woman centred. This would give rise to the same kinds of concerns as those which arose when the law was purely male centric. Conclusions: On the basis of the above, it may be noted that the law has traditionally not served the interests of women as well as it might have. While feminists have pressed for equality for women, this has not taken into account the need to restructure the very framework of the law to accommodate the differences in the needs and moral perspectives where women are concerned. But as Conaghan has pointed out, any such movement for introduction of changes in the law to benefit women cannot be carried out in such a manner that they only cater to esoteric interests and result in a specialist, elitist kind of legal framework where women are concerned. While women have traditionally been the ones requiring maternity leave for instance, and requiring part time work so they can also take care of domestic needs, this may be changing as more men assume these responsibilities. Therefore, the legal framework must be such that it is able to accommodate the needs of both men and women. It must also be such that it is able to address other discriminatory issues such as that which occurs on the basis of race and gender collectively. As society changes and the role of men and women change, this means that there is a need for the law to accommodate changing needs. There is indisputably a need to restructure the law in such a manner that feminist perspectives are also incorporated. Seeking to secure the rights of women under the existing framework of the law may not be feasible, because it is a male oriented system which does not take into account the special needs of women. But this does not mean eschewing the collective laissez faire system; rather what may be required is retention of this system with some reconstruction to incorporate the feminist perspective. Within a workplace situation for example, where the roles of men and women are changing and where pre-existing gender equations may no longer be valid, what may be required is a more sophisticated understanding of the dynamics of family and work, rather than using categories based upon gender. Applying a purely feminist theoretical approach to the modern day legal framework may also fail to address issues arising out of changing gender roles, such as homosexual and transsexual categories of gender roles. On an overall basis therefore, it appears that the failure of the law to evolve along with changing times, and the application of traditional notions of gender may not adequately serve the cause of women and promote their interests. In order to address the special needs of women, it is vital that the framework of the law itself must be restructured to incorporate the feminist perspective. This holistic approach incorporating the feminist perspective is likely to be more effective in promoting the rights of women, rather than the mere feminist emphasis on equality for women under the existing legal framework. Bibliography * Baer, Judith A, 1999. “Our lives before the law: Constructing a Feminist Jurisprudence”, New Jersey: Princeton University Press at pp 194 * Catherine MacKinnon’s testimony before the Zoning Commission of the city of Minneapolis on October 18, 1983.< http://mediacoalition.org/reports/Macreport3.pdf>; May 8, 2008 * Chodorow, Nancy. 1978. “The reproduction of mothering: Psychoanalysis and the sociology of gender”, Berkeley and Los Angeles: University of California Press. * Friedan, Betty, 1963. “The Feminine Mystique”, W.W. Norton and Company * French, Marilyn, 1985. “Beyond Power: On Women, men and morals”, Ballantine Books * Gilligan, Carol, 1982. “In a different voice: Psychological theory and women’s development”, Cambridge: Harvard University Press * Kohlberg, Lawrence, 1981. “Essays on moral development, Vol I: The philosophy of Moral development: Moral Stages and the idea of justice”, San Fransisco: Harper Collins * Lacey, N, 1998. “Unspeakable Subjects: Feminist essays in legal and social theory”, Hart Publishing. * MacKinnon, Catherine, 1993. “Only Words”, Massachusetts: Harvard University Press * McLaughlin, Janice, 2003. “Feminist Social and Political Theory”, Sweet and Maxwell * Morris, Anne and O’Donnell, Therese, 1999. “Feminist perspectives on employment law”, London: Cavendish Publishing * Pateman, Carole, 1997. “Feminist critiques of the public/private dichotomy”, IN Barnett, Hilaire. “Sourcebook on feminist jurisprudence”, Cavendish Publishing * Rawls, John, 1971. “A Theory of Justice”, Belknap Press * Rifkin, Janet, 1980. “Toward a theory of law and patriarchy”, 3, Harvard Women’s Law Journal 83 * Schwikert, Eva Maria, 2005. “Gender, Morality and Ethics of responsibility: Complementing teleological and deontological ethics”, Hypatia , 20(2), pp 164-188 * Stoner, James R, 2007. “Cooke, Hobbes and the origins of American constitutionalism”, University Press of Kansas * West, Robin, 1988. “Jurisprudence and Gender” 55, University of Chicago Law Review 1 Read More