The Historical Importance of Law to Feminism and the Women Movement - Assignment Example

 The historical importance of law to feminism and the women’s movement cannot be underestimated. It is certain that feminists and women’s movement activists have explored and critiqued aspects of the law for decades. Given the law’s role as the upholder of social values, in a society which feminists consider inherently patriarchal, this is scarcely surprising. The feminist movement properly so-called emerged in Europe and North America in the 1960s and 1970s, principally stimulated by a frustration with the political, social and economic inequalities suffered by women in ostensibly modern societies, and a desire on the part of many women to claim an equal role in the public sphere. They began to criticize a system which had relegated them to the household and to the roles of wife and mother, and to demonstrate in support of laws and other measures which would allow them to extend their role, and to prove that they were at least the equals of men. At the same time, they criticized the ideologies which had outlined this restricted role for them, and female academics, in law but also in sociology, history, psychology and other areas, attempted a fundamental revision of existing frameworks which were now held to be inadequate. However, the relationship between feminism and the law is more complex than a consistent attack of the one by the other. Some of the most important breakthroughs for the women’s movement have involved the establishment of legal precedents to ensure that progress is enforceable by law. Nevertheless, it is also true to say that the feminist critique of law has become more comprehensive over time, and what might be called ‘postmodern’1 feminism has refuted the legitimacy of the basic values which law claims to represent and defend. There is a general consensus, outlined by Naffine2 and Cain3, among others, that the historical links between law, feminism and the women’s movement can be divided into three main phases. In general terms, the first phase was characterised by feminist concerns about the male domination of law and the legal professions, and the ways in which men have operated a legal system designed to uphold the values of their own society and to perpetuate their power. The second phase broadened the attack, with feminists exploring the masculinity and masculine values which informs everything about law, and means that it is unable to take account of female values and experience, and does not operate for their benefit. More recently, feminists have extended this critique further, contending that the key values on which law claims to be based – justice and impartiality, for example – are compromised by its exclusion of female experience, so that these values become inherently male values. It is worth exploring each of these phases in more detail. In the first phase of feminist legal critique, from the mid-1960s, the vision of the law as a generally rational and fair institution was not much questioned. The law was seen as an institution currently monopolised by men, but prime territory for women to critique and infiltrate, so that the removal of legal constraints on female freedom could take place. Indeed, it was considered by the feminist mainstream that recourse to law would offer an opportunity for gaining effective women’s rights. The male monopoly of the legal profession was seen as a key obstruction, and a way to preserve jobs for men, with Sachs and Wilson arguing that men ‘manifest a grudging tolerance rather than a facilitative welcome to women entrants’4. Therefore, law was being criticised for not conforming to the own high standards of equality and objectivity it claimed to uphold. Of course, it was not only a matter of personnel. There was also an established male bias in legal thinking, perhaps to be expected in an institution dominated by men, with feminists complaining that it restricted the role of women to the private sphere5. By the end of this first phase, feminists and women’s rights activists were beginning to sense that there was something deeper amiss in the law as it stood, which reinforced a distinctive male culture. However, most significantly, first phase thinkers generally believed that the law could work towards an equality of the sexes once legal restrictions on equality had been removed, and even ‘implicitly approved the male norm’6 by doing so. Such a belief would not be a feature of the next phase. In British feminist thinking, Germaine Greer is a pertinent example of contemporary feminist thinking. In her bestselling book, The Female Eunuch7, first published in London in 1970, she argued that there is a deep-seated masculine hatred of womankind, and so emphasized a conflict between the sexes. The second phase therefore fostered a fuller critique of law. The system by which disputes are settled – in a competitive and adversarial environment, which can sometimes constitute a zero-sum game – was branded masculine, and ignorant of female values and styles. As Naffine put it, law was held to show a preference for a male view of the world, and for the male litigant, with ‘a harsh, uncaring, combative, adversarial style of justice’8, which took little or no account of female priorities and strengths, such as compassion. Writers and thinkers of this phase were concerned also with the empty rhetoric of law – its professed belief in impartiality and justice. Polan summed this up: ‘Judges have grown up in a patriarchal culture; their attitudes are inevitably shaped by their life experiences as the beneficiaries of male supremacy’9. While first phase thinkers thought the values of law could be used to bring about greater gender equality, in the second phase law was presented as corrupted for women by its alliance with a patriarchal society. The second phase was heavily informed by the prevalent trends in second wave feminism. In simple terms, feminists of the first waves had advocated that women liberate themselves by becoming more like men, and adopting dominant male values in order to achieve equality. However, second wave thinkers asserted differences and distinctively female characteristics. In relation to the law, thinkers like Gilligan argued that the female ‘different voice’10 had been ignored by a masculine and uncaring law. The third phase essentially built upon the work of previous thinkers. These feminists also adopted a more nuanced approach to the study of law, exploring the different ways in which it represents male interests in different situations. A more nuanced approach was necessitated by the fact that many of the legal restrictions on equal rights for women had been removed, but an equal society had not in fact been achieved. Attention was therefore refocused on the fundamental framework of law, and how this excluded women. The basic values of law are usually seen as rationality and principle, but important parts of the human picture, and notably those gained from the female experience and female knowledge, were missing. Therefore, law can be seen to actually be expressing the preoccupations of a patriarchal ideology. For example, the law officially professes the equal rights of women, but subtly, and sometimes not so subtly, was seen to support their subordination to their husbands, and to sexualize aspects of female life. In this way, the third phase took a more complete approach to the law and how it relates to feminism, acknowledging that the platitudes of the first phase were insufficient, and that the interactions, and the ways in which female subordination and exclusion is brought about, are complex. The third phase therefore adopted the theories of postmodernism, in challenging notions of objectivity, impartiality, and universality. Smart proposed that law was considered so relevant to feminist knowledge and feminist critiques because of the way it exercises power and disqualifies and excludes the particular knowledge and experience of women. Feminists have often argued that law disqualifies others bodies of knowledge which are considered inferior or irrelevant. Naffine supports this notion in arguing that much law is built upon a vision of a very particular social order, and designed with a particular type of individual in mind, and ‘it is this individual, not anyone, whom law in fact endeavours to serve’11. This rational man of the law leads to law being designed exclusively to accommodate a kind of ‘middle-class masculinity’12. Bartlett and Kennedy share the same concerns, and sum up the issue in a pertinent fashion: The United Kingdom’s legal system is based on the theoretical existence of a ‘mythical being: a legal subject who is coherent, rational, and freely choosing, and who can, in ordinary circumstances, be held fully accountable for ‘his’ actions’13. However, a legal system which bases its expectations, its criteria, its processes and its judgements on what this being would do, has long been held by feminists to be woefully inadequate at accounting for female experience. These thinkers have recently made clear that only be listening to women, and listening carefully, can we get the legal theory correct. It should be noted that some of the most important advances in the women’s rights movement in the United Kingdom have been won through the legal process. These include statues enshrining the right to equal pay, and establishing the illegality of gender discrimination. Even before the existence of a feminist movement properly so-called, it was with statues at Westminster that women were granted the suffrage, with the Representation of the People Act 1918, with its subsequent amendments, and the right to own property and enjoy, theoretically at least, economic independence. Indeed, influential 19th century British thinkers, such as John Stuart Mill and Harriet Taylor Mill, who advocated women’s rights, believed that the women needed the suffrage in order to exercise their rights as the equals of men, as the vote would allow them to change male-biased systems and structures14. Throughout the 1960s and 1970s, in the course of women’s rights activities in the UK, won a series of legal challenges, clarifying in their favour legislation which had displayed a clear gender bias. Public policy turned definitively against discrimination between the sexes, with the Sex Discrimination Act 1975 and the Equal Pay Act 1970 being prominent examples of landmark legislation passed at Westminster, with the former defining gender discrimination as ‘on the grounds of her sex he treats her less favourably than he treats or would treat a man’15. However, enshrining women’s rights in law, and ensuring the illegality of some gender usages, has been sufficient to eliminate a gender bias from the legal system itself. However, Smart saw law also a potential danger to the women’s movement, advising that feminists should take care in resorting to law, given that it was entirely shaped by the preoccupations and principles of a ‘masculine culture’16, and warns feminists away from ‘the siren call of law’17. By this she was expressing the third phase concern with the hollowness of law’s professed guiding principles: it may promise justice, fairness, and impartiality, but these are deeply informed by a patriarchal ideology that does not sufficiently accommodate feminine experience. Aspects of the law which specifically relate the female body and to female sexuality have been particularly fertile ground for feminist critiques of patriarchy. Since the early 1970s, feminists have challenged the sexist aspect of many laws, with abortion, rape, pornography and access to contraceptives being major targets. Edwards is one of many feminists to express astonishment at the patriarchal criteria used in making legal judgements18. It has long been clear, in the view of such feminists, that laws are not only ‘often contradictory and anomalous’19, but also institutionalize a brazen gender bias, at the same time as issuing judgements in favour of women in gender discrimination cases. Edwards further notes that in the definition of rape at the time she was writing, only penetration of the vagina by the penis constitutes the crime, while penetration by other objects would be dealt with on less several assault charges20. Today, rape in England and Wales is governed under the Sexual Offences Act 2003, which came into force in the following year. Rape is dealt with in section 1 of the legislation, which defines it as a person ‘intentionally penetrates the vagina, anus or mouth of another person (B) with his penis’21, with the issue of consent still being the principal fact to be established. Perhaps surprisingly, Edwards’ concerns are still relevant, and the insertion of objects is not defined as rape. However, it is not only the criteria of crimes that are illustrative of a gender bias, but also the whole process of criminal justice, as we will see from Smart’s work on the rape trial in England and Wales. Smart focused on rape, and made a convincing case for law’s inability and unwillingness to take account of any experience beyond a narrow definition: ‘the rape trial distils all of the problems that feminists have identified in relation to law’22. The rape trial is traumatic, and as the woman’s experience of the crime does not usually exactly fit the narrow legal definition, the woman is often made to feel like a bystander, and her account is dismissed as irrelevant. The key issue in a rape trial is the presence or absence of consent, and Smart contends that the trial enshrines the male notions embedded in a patriarchal society of fundamental male sexual needs, and female sexual capriciousness. Such a contention could be easily challenged were it not for comments from the obiter dicta of several English judges which Smart has presented as evidence. Judge Sutcliffe stated in a 1976 rape trial: ‘It is well known that women in particular and small boys are liable to be untruthful and invent stories’23. Here women are presented as immature and unreliable beings, in contrast to the rational norm assumed by masculine law. Again, in 1982, at Cambridge Crown Court, Judge Wild commented, ‘Women who say no do not always mean no’24, in an astounding defence of patriarchal notions of female irrationality. Furthermore, the disqualification of female testimony is not always so explicit – women have sometimes been found guilty of consent due to the subtle employment by the prosecution of sexual and racist innuendo, and no matter what violence a man may have used to force female submission, if any possibility of subsequent female pleasure is suggested, this seems to eliminate responsibility for the initial crime. The rape trial has historically been a focus for feminists because of the inability of most rape victims to receive official justice. In the 19th century, women who were able to give accounts of sexual violation in an open court were considered immoral, and contemporary newspapers gave such trials a pornographic treatment, surely contributing to the female reluctance to bring such trials to court, given the sexualized nature of the trial25. The exclusion of female experience was never more poignant than in Smart’s noting that at the time she was writing (1989), it was still not a legal offence for a husband to rape his wife. This may have changed, but the fundamental nature of the rape trial has not. While the Sexual Offences Act 200326 provides for a sentence extending to life imprisonment for those convicted of rape, the conviction rate remains notoriously low. Law has been so historically important to feminism because it can be so difficult to being about positive change in this area. Law appears, to many citizens, to be something natural27 – stemming from self-evident values and ideological assumptions – and so the male bias here has been particularly entrenched, and difficult to distinguish from other aspects of the law. What is crucial for feminists here is exposing evidence of a clear male bias, and of male presumptions underpinning the legal framework, in order to make the case for the inclusion of a feminine perspective. Beyond this, it is unclear that direction the proposed feminism reform of the law would take. With the advent of a third phase of feminist thought, the fundamental tenets on which law has historically been based have been held to be complicit in the maintenance of a patriarchal order which specifically excludes women. In the light of this, it is difficult to see how feminist and legal thinkers will ever be able to reach any compromise on how female knowledge and experience can be incorporated in the law. 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