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WOMEN AND EXCLUSIVELY WOMEN: SOME REFLECTIONS OF A

LAW STUDENT

'Women', one of the most frequently used term in the public discussions but hardly
understood the way it should be understood. At the same time, 'women', performing a various
roles in the private sphere of life as mothers, daughters, sisters, wives, beloved, and friends,
are never a complete whole but dependent in the relationship with some other factors whether
be it father's support or husband's benediction. It is, in most of time, a forgotten fact that
women are female humans and should be treated as upto the minimum level of human
dignity. Historically, they were denied voting rights and denied literacy, and till day, at many
instances or majority of time, are denied equal pay for work of equal value and are subjected
to various gender based and social biases. Even today, Women are subjected to unspeakable
oppression and cruelty in different parts of the world including genital mutilation and honour
killing. Consequently, discrimination in any form including gender, social, economical or
political is fact, not fable and day to day experience for women, not accidental regardless of
the situation of the society whether peace or conflict.

'Women', treated as a sex or a gender, has a long history of being and becoming women
therein and if the basic idea of being and becoming women is related to some social
constructs of wide range of positive terms such as loving mother, kind wife, beautiful women
to negative terms, including Bitch, whore, prissy, passive, weak, inferior and uneducated . It
is a time to kill the idea women in the mind of the society for in search of real women and get
rid of stereotypes. In the past, they have desperately struggled; in the present they are
struggling to redress the past and may be in the future, they would like to redress today's
present if the world makes the same mistake of not understanding 'women' exclusively.

PART I WOMEN: FROM DECLARATION OF SENTIMENTS TO WORLD TODAY

Long time back, when the Declaration of Sentiments was presented in Seneca Falls
Convention in July, 1848, as stated by the National Women’s History Project, women’s
grievances included the following1:

• Married women were legally dead in the eyes of the law.

• Women were not allowed to vote.

1
Shilaja Nagendra, Women's Rights, ABD Publishers, India, 2006, p.2
• Women had to submit to laws when they had no voice in their formation.

• Married women had no property rights.

• Husbands had legal power over and responsibility for their wives to the extent that
they could imprison or beat them with impunity.

• Divorce and child custody laws favoured men, giving no rights to women.

• Women had to pay property taxes although they had no representation in levying of
taxes.

• Most occupations were closed to women and when women did work, they were paid
only a fraction of what men earned.

• Women were not allowed to enter professions such as medicine or law.

• Women had no means to gain an education since no college or university would


accept female students.

• With only a few exceptions, women were not allowed to participate in the affairs of
the church.

• Women were robbed of their self confidence and self respect and were made totally
dependent on men.

The fact to be remembered here amazingly is that New York Herald printed the entire
Declaration of Sentiments in order to mock it and Elizabeth Cady Stanton2 said that it was
“just what I wanted. Imagine the publicity given to our ideas by thus appearing in a widely
circulated sheet like the Herald. It will start women thinking, and men, too; and when men
and women think about a new question, the first step in progress is taken.” That is the way
this realm of thought is taking its course and advancing world today. Arguably, women at
world today are not in equal footing in comparison to the male counter parts and still there is
a necessity of doing something ‘in defence of women’s right.’

PART II: WOMEN AS SUBJECTS OF LAW: REASONABLE MAN V.


REASONABLE WOMEN

The first simple query related to the status of women revolves around the issue whether
women are the subject or the object in relation to law and society. Absolutely, on the ground
of being human, women are supposed to be the subject of law but the practice, to be precise,
the male culture of law treats or prefers to treat women as objects. Though the time has
2
One of the most prominent women’s right activists of the United States and an important figure behind Seneca
Falls Convention, held in New York.
changed and the context has changed but still the residual of the male culture of law is seen or
reflected in various legislations even today. For instance, an update of the study on
discriminatory laws relating to women conducted by FWLD in 2009 identified 103
provisions and 92 schedules in various Acts and regulations which continue to discriminate
against women both in letter and in effect.3

Referring to Betty Friedan’s work The Feminine Mystique, she argued that the society does
not permit women to accept or gratify their basic need to grow and fulfil their potentialities as
human beings. She called the Suburban American Home “a comfortable concentration camp”
because it restricted women’s lives so severely. Likewise, the laws treated women as object
rather than subjects in the past. The pain of being the object of property that women
experienced is hardly described in the words. For instance, Illinois Supreme Court denied a
licence to practice law to Myra Bradwell in 1969 stating that at common law, married women
were said to be under "coverture" or under the protection of their husbands.4 Likewise,
according to Usha Ramanathan, women in law are portrayed in mostly three categories: wife,
non-wife and criminal.5 Therefore, the concept of reasonable woman standard has been
mooted by feminist writers and that is in the centre stage for the modern times.

In this light, the crater between Reasonable man and reasonable women is vivid. The concept
of reasonable man was created for justicing convenience and judges, attempting to unravel
the mysteries of human conduct, intent and motive, have for years turned to the reasonable
man for guidance. 6 The phrase ‘reasonable women’ was never articulated then. The basic
reason could be that legislators kept women, minors and the mentally incapable together and
emphasized over the proprietorship of man over woman. For instance, The law indeed moves
around reasonable man, most often criticized as being male cultured and women around the
world have found themselves and their experiences and perceptions largely excluded from the
purview of the law. Additionally, the legal language marginalized women by saying that "he"
includes "she".7 The legal language and reasoning has always been gendered, informed by
men's experiences and derived from the powerful social position of men, relative to women.8

3
Sapana Pradhan Malla and Ayasha Sen, "Engendering the Nepalese Constitution: A Women Perspective",
Nepal Bar Council Law Journal 2008, p. 95.
4
Frances Olsen, "From False Paternalism to False Equality: Judicial Assaults on Feminist Community, Illinois
1869-1895", (Feminist Theory Within the Law), Frances E. Olsen (ed.)), Dartmouth, Aldershot, England, 1995,
pp.416-438
5
Usha. Ramanathan, “Reasonable Man, Reasonable Woman and Reasonable Expectations”, (Engendering
Law: Essays in honor of Lotika Sarkar, A Dhanda and A. Parashar (eds.)), Eastern Book Co., Lucknow, 1999,
pp. 33-71.
6
Id.
7
S.P. Sathe, "Gender, Constitution and the Court", (Engendering Law: Essays in honor of Lotika Sarkar, A
Dhanda and A. Parashar (eds.)), Eastern Book Co., Lucknow, 1999, p. 117.
8
M.D.A. Freemen (ed.), Lloyd's Introduction to Jurisprudence, Sweet & Maxwell, London, (6th edn.), 1996,
p.1035
Now, it is time to challenge the traditional view that ‘The law's cognition of women is
refracted through the male eye rather than through women's experiences and definitions.’9
Therefore, there should be the concept to reasonable women taken into consideration for
justicing convenience and ‘remedying the wrong done to women.’

PART III: WOMEN, FEMINISM AND POPULAR DEBATES IN FEMINIST


JURISPRUDENCE

'Women' as a principal subject in feminism and feministic jurisprudence is hitting the public
sphere nationally and internationally. Feminism as 'the theory of the political, economic, and
social equality of the sexes' and at the same time, 'organized activity on behalf of women's
rights and interests'10 and feminist jurisprudence as 'the study of the construction and
workings of the law from perspectives which foreground the implications of the law for
women and women’s lives' are shaping the new notion of 'women.' The traditional conception
of 'women' has almost obsolete now and the new notion based on the human dignity is
recognition in more profound way, in legal instruments at the best, if not in practice at the full
extent.

The term ‘feminism’ has many dimensions and different meaning associated thereto which
are equally contested. For instance, some writers see feminism synonymous to historically
specific political movement in the US and Europe whereas other writers use it to refer to the
belief that there are injustices against women. No doubt, "feminism" has close connection
with women's activism from the late 19th century to the present and there is discretion how
one should view it- as a separate realm of thought or a product of political, social, cultural
movements.

Historically, in the mid-1800s the term 'feminism' was used to refer to "the qualities of
females" and aftermath of the First International Women's Conference in Paris in 1892,it was
used regularly in English for a belief in and advocacy of equal rights for women based on the
idea of the equality of the sexes. The women’s movement particularly, in US is viewed as
occurred in “Waves” like First Wave, second wave and third wave. First wave basically
integrates the struggle to achieve basic political rights during the period from the mid-19th
century until the passage of the Nineteenth Amendment in 1920. Likewise, Feminism waned
between the two world wars, to be "revived" in the late 1960's and early 1970's as "Second
Wave" feminism and more recent transformations of feminism have resulted in a "Third
Wave".

9
Id, at 1035
10
http://www.merriam-webster.com/dictionary/feminism. Last visited on March 1st, 2010.
In this light, it is important to look upon dimension of feminism such as political, social and
culture. Generally, feminism is depicted as the greatest and most decisive social revolution
which do not break out, rather takes place.11 Likewise, feminism is also theories and moral
philosophies concerned with gender inequalities and discrimination against women described
as an ideology focusing on equality of the sexes. Some have argued that gendered and sexed
identities, such as "man" and "woman" are social constructs. Feminist activists have
campaigned for women's legal rights (rights of contract, property rights, voting rights); for
women's right to bodily integrity and autonomy, for abortion rights, and for reproductive
rights (including access to contraception and quality prenatal care); for protection of women
and girls from domestic violence, sexual harassment and rape; for workplace rights,
including maternity leave and equal pay; against misogyny; and against other forms of
gender-specific discrimination against women.12

On the basis of things mentioned above, the major feminist issues can be traced as:13

i) Dominance, patriarchy and women’s sense of justice

ii) Social or Gender equality

iii) Definition and organization of sexuality from women’s perspective.

iv) Right of Entitlement and Reproduction

v) Humanistic society without bondage of marriage, family and gender

The issues and core concerns of every feminist are same but the approaches are diverse.
Therefore, there comes the classification of feminism such as:

a) Cultural feminism

b) Liberal feminism

c) Radical feminism

d) Post Modernism feminism

Be it any kind of feminism, in general agrees on gender difference, gender inequality and
gender oppression.

In simplest form, feminist jurisprudence can be described as the study of the construction and
workings of the law from perspectives which foreground the implications of the law for
women and women’s lives. It seeks to analyze and redress more traditional legal theory and
11
Surendra Bhandari, Court-Constitution & Global Public Policy (A Study on Nepalese Perspective),Democracy
Development &Law, Anamnagar, Kathmandu, (First edn.), 1999, p.4
12
http://en.wikipedia.org/wiki/Feminism#Anti-feminism. Last visited on March 1st, 2010.
13
Supra note 12, at 5
practice. The basic idea is that the law which does not acknowledge or respond to the needs
of women, must be changed.

The origins of feminist jurisprudence is explained in a number of ways in which one


explanations sees it as an off-shoot of the critical legal studies movement and other sees it as
necessarily a development from the women's movement more generally. 14 Feminist
jurisprudence is a house with many rooms; in this it reflects the different movements in
feminist thought and the basic genesis suggests that the society, and necessarily legal order, is
patriarchal.15

The inquiry of feminist Jurisprudence as suggested by Heather Wishik incorporates following


seven questions:16

1. What have been and what are not all women's experiences of the law "life situation"
addressed by the doctrine, process or area of law under examination?

2. What assumptions, descriptions, assertions and/or definitions of experience - male, female


or ostensibly gender neutral- does the law make in this area?

3. What is the area of mismatch, distortion or denial created by the differences between
women's life experiences and the law's assumptions or imposed structures?

4. What patriarchal interests are served by the mismatch?

5. What reforms have been proposed in this area of law or women's life situation? How will
these reform proposals, if adopted, affect women both practically and ideologically?

6. In an ideal world, what would this women's life situation look like, and what relationship,
if any, would the law have to this future like situation?

7. How do we get there from here?

Asking questions has huge significance in feminist jurisprudence as in the course of feminist
legal methods, Bartlett emphasizes three things: asking the women question, feminist
practical reasoning and consciousness raising.

Feminism is more general and feminist jurisprudence is more specific. Literally, feminism is
associated with much older political movement for equal rights and justice for women. The
political movement began and continues to be conducted within the framework of the rules of
liberal society. Feminist jurisprudence, on the contrary, finds liberal legal theory and methods
of reasoning to be largely responsible for the oppressed condition of women.17 Therefore, this
14
Supra note 8, at 1025-26
15
Supra note 8, at 1027
16
Supra note 8, at 1028
17
Suri Ratnapala, Jurisprudence, Cambridge University Press, New York, (1st edn.), 2009, pp. 233-239
brand of feminist jurisprudence belongs to the genre of radical anti-liberalism.18 One point
noteworthy to be mentioned here is that discrimination, ill-treatment, oppression are unlawful
in liberal societies. Both feminism and feminist jurisprudence are aware of it. Feminism is
more focused on the atrocities that women endure in illiberal as well as so-called liberal
societies and feminist jurisprudence emphasizes on the condition of women in such societies
under liberal laws.

d) Popular Debates

Feminist jurisprudence is deeply rooted in two types of debate: reformist/radical debate or as


the sameness/difference debate.

Regarding reformist/radical debate, reformist feminists argue that the liberal tradition offers
much that can be shaped to fit feminist hands and should be retained for all that it offers
whereas radical feminists see that the traditional system as either bankrupt or so problematic
and they want to change the whole set up in order to have a fresh start. More specifically,
they forward their arguments that liberal legal concepts, categories and processes must be
rejected, and new ones put in place which can be free from the biases of the current system.
Thus, reformists don't have opinion of abandoning the existing system whereas radical
feminists have so.

Within the sameness/difference debate, the central concern for feminists is to understand the
role of difference and how women's needs must be figured before the law. Referring to
Wendy Williams, a liberal feminist, there are two choices: either equality on the basis of
19
similarities between the sexes or special treatment on the basis of sexual difference. She
favoured the former since difference always means women's difference and this provides the
basis for better treatment to them in comparison to men whereas an equal treatment approach
only benefits women who meet male norms and not those who engage in female activities,
childbearing and rearing most notably. It is a tussle "We are same" v. "We are different."

In this light, the rational course between equality and equitability should be pursued which
may be best described as the developed percept of the traditionally once abandoned "separate
but equals" and "equals but separate" but without resulting grave discrimination to any one of
sexes, specially, women themselves.

18
Id.
19
Supra note 8, at 1031