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The status of women as empowered citizens around the world is yet to be ascertained. Guided by the Charter of the United Nations and the Universal Declaration of Human Rights, it seems as if the trend towards a just social order reflects a better tomorrow, and yet, thousands of women suffer from the brutal crimes and atrocities committed by their male counterparts. Deeply woven into the social fabric of society, women face the onslaught of a patriarchal legal system - be it by the denial of fundamental rights in Afghanistan or the exclusion from property interests in India. Women still struggle as the marginalised gender in many parts of the world. This leaves considerable room for scrutiny of whether gender neutrality of the law is a reality, or indeed, a myth. The aim of this paper is to map the main theoretical arguments of feminist jurisprudence, which help to unmask the hidden language of gendered laws.
It draws upon the various feminist theories that have helped critique the basic assumptions of the Rule of Law, thus laying the foundation to understand whether laws are undeniably neutral. With this backdrop, the essay proceeds to critically examine the role of law in modern society and its ability to remain impartial. However, recognising the permeable nature of the legal structures, it concludes with seeking to portray the everyday influence of social rituals and customs that help determine the true character of the law. Thus, the law inherently possesses the capacity to construct or deconstruct, include or exclude, remain neutral or gendered in nature. Historically tracing the patriarchal tradition from the writings of Plato and Aristotle, it has been gathered that traditionally, culturally and socially, women have belonged to the second or the inferior sex. As this forms the point of departure of feminist jurisprudence, feminist scholars have brought to the forefront a wide array of issues on law and gender.
The feminist movement has emerged as a defining force that worked towards highlighting and correcting inequalities and prejudices supported by seemingly neutral laws, through policy development. It marked the birth of a new political group who focussed on exposing the reality of gender neutral laws, campaigned for equality in the private and public sphere, stressed on womens representation in political arenas and demanded a growth of feminist literature. Thus feminism heralded a significant critique of the legal landscape that governed the construction of socio-political equality in society, predominantly stressing on laws role in perpetuating patriarchal hegemony. The development of law as an instrument of justice has long been the directive principle of modern society. It seeks to protect and promote security, liberty and property of each individual, along with the promise to right the wrongs committed, and it assures a remedy for injustice. This representation of the law has given its political expression in the concept of the Rule of Law - that is, the legal doctrine that all human beings are equal under the law and can expect from it a neutral and unbiased determination of their rights.
Associated with liberalism, it rests upon the philosophy of rationality, objectivity, formal equality and impartiality. It creates an impression that all citizens have an equal right and value in society. It is this principle that critical legal theorists and feminists have challenged and disagreed with, subscribing to the claim that laws are masked in terms of neutrality, while in reality form the reason of discrimination. Over the last 20 years, there has been a rapid growth of feminist jurisprudence in particularly Western liberal societies.
As a political theory, concerned with the issues of power, it challenges the status quo by assessing the manner in which power is controlled and distributed predominantly between the men in society. Despite the different approaches adopted by feminists, each school of thought converges at a unifying desire to abolish the omnipresent patriarchy in society. As feminists have developed various theories that refute the ostensible grand philosophy of Rule of Law, the Liberal and Radical feminist approach are the two most influential perspectives on women and law, generated by contemporary feminists. Ngaire N affine has written about the first phase of feminism, and it can be characterised by its concern with male monopoly of the law. Stemming from liberal thought during the late nineteenth and twentieth centuries, this wave was supported by values of rationality, individuality, liberty and equality constrained under the rule of law. It separated the public from the private sphere.
This dichotomy, the former regulated by the State, consists of the world of politics, employment and commerce while the latter is concerned with privacy - the family, and is unrestrained by the law and the State. It is this historical inequality of women vis -- vis men that forms the point of embarkation for liberal feminists. The first wave liberal feminists theorized that it was bad law and policy that denied women an equal position in the public sphere. While emphasising the basis of the sameness or the formal equality approach, they fought for suffrage rights while the second-wave liberal feminists focused their efforts on making all laws gender neutral and used the law to create equal opportunities for women to participate in the public world of men. However, as this approach sought to deconstruct the inequalities of the system, it did not challenge the traditional nature of the law. It denied that there were any important, immutable differences between men and women.
As Catherine Mackinnon explains: Liberal legalism is thus a medium for making male dominance both invisible and legitimate by adopting the male point of view in law at the same time as it enforces that view on society. The second wave of feminism that dominated the late 70 s and 80 s addressed not so much the substantive inequalities under which women existed but rather the legal and societal structures that were responsible for the division. Also known as the Radical or the difference approach, feminists analysed the innate male bearing power that was intricately woven into the system and seconded the legitimate use of laws and policies which specifically apply to women because of their biological or socially constructed differences. By assuming a gender-neutral language, radical feminists argued that the law masks the extent to which law is permeated by male constructs and standards. They also assumed that the private/ public distinction had been designed by men to serve their own interests of domination and attributed female subordination not merely to the historical bad law but as a product of male intention. Therefore from a gender based equation of unequal power, it translated into a sex related distinction.
Although, the Liberal and Radical feminist approach made substantial impact, altering the contours of womens equality within and outside the law, it has nevertheless attracted criticism on various grounds. As Katherine ODonovans work suggests that the private sphere was more regulated than liberal theory had implied. It used male experiences and m...
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Research essay sample on Is Gender Neutrality Of Law A Myth
