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... ale perspectives as the benchmark without questioning that standard, while the radical approach was criticised for its overemphasis on essentialism. The Marxist approach is a classical critique of Western political thought. It postulated that the capitalist society was divided into two great classes: Bourgeoisie and Proletariat, where the interests of the working class (Proletariat) was controlled by economically powerful ruling class (Bourgeoisie). As the law forms a part of the superstructure that reflects the economic base in society, Engels argued that the position of women in society had been determined by the changing structure of marriage which itself is determined by economic forces. Thus, the feminist critique of Marxism posited, since the economic base was governed by men, it confined women to the domestic sphere and hence, excluded her from participating in the legal domain, which subsequently governed the public sphere.
Arising in the late eighties and continuing through the nineties, the third phase of feminism or the postmodern approach, as scholars defined it, accepted the premise of the laws maleness but rejected the grand theories of rights, equality and rationality. It understood gender as a socially constructed identity that forms the subject matter of law. It prioritised gender over sex, avoiding the perpetuation of womens inequality through forms of biological essentialism and stressed on developing alternative perspectives for justifying the inbuilt prejudices. Thus, by throwing light on the various theories of feminist jurisprudence, one can begin to identify the overarching male domination that affects the construction of legality in an apparently gender equal society. As political ideas are not merely a passive expression of vested interests, but in reality engage in the process of influencing the legislature, it is only fair to embrace the interests of each individual in society, independent of their identity.
The logical divorce between the factual and the normative premise, underlines the positivist effort to provide a coherent structure of legal rules, unaffected by morality. From a feminist perspective, to account for the autonomy and impartiality of the law, is to reason from untrue assumptions. As manifested in the laws relating to provocation and rape, it has been illustrated by Susan Estrich that it is very difficult for the victim, most often a woman to prove her innocence and be awarded justice. The law is designed in a method that brings to focus unnecessary requirements such as her previous sexual history and a searing cross examination demeaning her personally in the eyes of the public. Though most jurisdictions have revamped their rape laws, this is a clear expression of yet another form gender bias within the scope of the law. Moving from the theories that mirror the existence of a gendered environment of the law, it is important to study the language that manifests its expression.
For centuries, men have written history. Central to any discourse or subject is the language that it adopts; but there is adequate evidence to portray that the traditional use of language has been biased towards men. According to feminist lawyers, the law has been cast in a mould that suitably belongs to the men. It replicates the understanding of the patriarchal form of reasoning as its yardstick, clearly indicating the exclusion of womens voices in the drafting of statues and its interpretation. As Lucinda Finley points out, the universal legal language is a male language because intellectually, economically and politically privileged men have had power to set the standards of the law. As seen in the context of Labour Laws, Tort Law or Law of Contract, there is an inherent overtone of male perspective visible in the law that has been drafted.
Along with the description of human nature, gender potential and social arrangements, the logic and structure of law reinforce mens values. The language that is supposedly based on the premise of impartiality and rationality mirrors itself as contradiction to the fundamental objective stipulated by the doctrine of the Rule of Law. Thus the language of neutrality can easily silence the voices that have not participated in its creation, leaving it as a de-contextualized collection of rules and regulations. Notwithstanding the above arguments towards the partiality of the law, it can be said that laws are changing to accommodate daily experiences where women play significant roles.
To bridge the gap between theory and practice, legislations such as Equal Pay Act 1970, the Sex Discrimination Act 1975 has been designed to provide for positive equality. The efforts of international agencies such as CEDAW, UNIFEM, WHO, UNHCR, and UNESCO have been guided by the axiom of the Rule of Law and created appropriate monitoring instruments to safeguard womens rights. As these organizations have worked towards setting international standards that ensures the protection of individual rights of women economically, politically and socially, it is apparent that efforts are being made to integrate gender as a central component in modern legal structures. Bringing together the local and national laws to the echelon of international standard has hitherto been a core challenge. As the laws do not exist in a vacuum, it is critically important to analyse and locate the role of social customs that help determine the nature of formal laws - founded on the tenets of objectivity and rationality.
In societies where laws are unreachable or unknown to women, as she is a victim of her surrounding, it is arguable that the impartial nature of the law does truly ameliorate her position. For example, as discussed by Recent Patel, the Hindu Succession Act 1956, which legally entitled women to independent property ownership, marked the first significant expression of equality towards both sexes. As Patel demonstrated, it was a superficial attempt of the law to grant equal property rights to both men and women, as there was a traditional incapacity that was controlled by the internal factors such as religion, social and cultural obligations which prevented women from owning property. Another example that discussed the limits of law as an effective tool of gender equality, has been assessed by Mary Marboreke, within the context of the law in Zimbabwe. According to her, as laws reinforce existing social relation, which are gendered power relations, the law reinforces gendered social relations played within cultural contexts, thus excluding women from participating in public rights to a large extent.
Thus, the law offers a piece meal solution as it does not recognize the interest in a culturally coherent whole. In conclusion, the inherent paradox that exists in the principle of the Rule of Law seems to be camouflaged as a result of its supposedly pragmatic nature. It is unlikely that the emancipation of women from the web of gender social structures can be addressed by a simple solution generated by the recent movement towards positive affirmation. Thus, until the legal structures take cognizance of the social context that indirectly defines the array of power relations, the gender neutrality of law, will perhaps, remain a myth.
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Research essay sample on Is Gender Neutrality Of Law A Myth
