Feminists feel that history was written from a male perspective, and that it does not reflect the contribution of women in shaping history and society. Feminist believed that women still struggle to get recognition for their work. Human nature, gender potential, and societal arrangements have all been skewed by male-written history. The reason behind all of this is primarily male dominance. If you analyze carefully, you will understand that the law’s language, logic, and structure were all developed by men and promote masculine beliefs to an extent. Many dominant legal concepts strengthen and prolong patriarchal dominance by portraying male features as the standard ones and feminine characteristics as deviations from the norm. Feminists refute the notion that men’s and women’s biological makeups are so dissimilar that certain behaviors may be linked to gender. Feminists argue that gender is socially determined rather than biologically determined. Physical appearance and reproductive potential are determined by sex, not by psychological, moral, or social characteristics. Feminist legal theory, also popularly known as feminist jurisprudence, is founded on the premise that the law has played a key role in addressing women’s struggle throughout history. Feminist believe that women have suffered a lot irrespective of which generation they belonged to. The goal of Feminist legal theory is two-fold. The first is that feminist jurisprudence aims to demonstrate how the law contributed to women’s former status as second-class citizens. Second, feminist legal theory is committed to improving women’s status by reworking the law and its gender orientation. Feminist jurisprudence is a legal philosophy centered on gender equality in politics, economics, and society. Feminist jurisprudence emerged as a topic of legal study in the 1960s. It addresses many issues about sexual and domestic violence, workplace inequality, and gender discrimination. Feminists have identified the ramifications of ostensibly neutral laws and behaviors using a variety of ways. Employment, divorce, reproductive rights, rape, domestic violence, and sexual harassment laws have all benefited from feminist jurisprudence research and understanding.
Three Schools of Feminism
Anyone who seeks to bring equality between men and women is regarded as a feminist, but they may have different ways to deal with the same. Feminist jurisprudence is not homogeneous, despite feminists’ shared commitment to equality between men and women. Within feminist law, there are three major schools of thought.
1) Inequality is the emphasis of radical or dominant feminism. It claims that men have historically ruled women as a class, resulting in gender inequality. Feminist after going through history, realized that women have always been credited as males’ property, be it her father, husband, or brother. Gender is a matter of power for radical feminists. Radical feminists argue that we should stand up against traditional techniques that focus only on males and their masculinity. They claim that sexual equality must be built based on the differences between men and women.
2) Traditional feminism, also known as liberal feminism, holds that women are just as logical as men and should have the same freedom to make their own decisions. Our society has always taught women that men are immature and you should help them walk on the correct path. But this society has also taught men that you are intellectually more capable and you are the one who should take decisions about your life and also about the life of women. This is what traditional feminism wants to talk about.
3) Another school of feminist legal thinking is cultural feminists. They concentrate on and embrace the distinctions between men and women; this group of thinkers claims that women value connections, whereas men value abstract principles of rights and reasoning. This school aims to provide women’s moral voices of caring and communal ideals equal prominence.
Theories of Feminist Jurisprudence
The diversity of feminist philosophy and theory is reflected in feminist jurisprudence. All feminists believe that women are oppressed or disadvantaged compared to men, and that this oppression is illegitimate or unfair in some way. Women and men may be biologically different, these differences are not justifiable grounds for treating women differently.
Feminism is the intellectual driving force behind today’s women’s movement, producing unique knowledge in feminist sociology, feminist philosophy, feminist history, and feminist jurisprudence. Law and justice for women are obvious extensions of feminist jurisprudence. Women’s organizations have used legal techniques to help them attain greater equality and social justice in their campaigns.
Feminists believe that law has a role in establishing, sustaining, reinforcing, and perpetuating patriarchy. They strive for ways to undercut and eventually remove patriarchy by somehow reworking the laws of the present time.
The feminist legal investigation focuses on the following topics:
- The basic assumptions of law based on male-female and purportedly gender-neutral distinctions are investigated.
- The mismatch, distortion, or denial caused by the disparity between women’s life experience and the laws’ assumed or enforced structures are investigated.
- Women’s experiences are used to examine legal concepts, norms, doctrines, and processes.
- The mismatch serves patriarchal interests.
- Law reforms are needed to eradicate patriarchal effects.
Feminism is divided into four schools: liberal, radical, cultural, and postmodern, with equality being the early theme and aim of feminists in law. So, let’s have a look at all the four schools.
Radical feminism is also known as dominating feminism because it views gender equality as a matter of male dominance over women rather than a matter of equality. Male dominance is something that features itself in almost all domains of life. Radical feminism is a feminist perspective that advocates for a radical reorganization of society in which male supremacy is abolished in all social and economic circumstances.
Radical feminists regard society as fundamentally a patriarchal society in which males dominate and oppress women without any justified reason for doing it. They also strive to eliminate patriarchy by challenging current social norms and structures to liberate everyone from an unfair society. Inequality affects women, but it also causes harm to everyone at large. Multiple actions have been taken to fight against such inequality. This involves fighting against women’s sexual objectification, raising public awareness about issues like rape and violence against women, and questioning gender roles from the beginning.
According to radical feminists, patriarchy has caused women to be perceived as the “other” to the male norm, and as a result, they have been systematically oppressed and marginalized. It started in the past and has continued until now; if nothing is done to fight against it, it will continue to affect the women at large.
They also claim that men as a class benefit from women’s oppression. Patriarchal ideology isn’t usually characterized as the concept that all men benefit from women’s oppression. Rather, it claims that patriarchy is primarily defined by a dominance relationship in which one side dominates and exploits the other for the benefit of the former. Radical feminists think that men (as a group) exploit social systems and other forms of control to oppress women (and non-dominant men). The situation has to be changed to bring society into an equal position.
Radical feminists think that through questioning current social norms and structures, patriarchy can be abolished and that doing so will liberate everyone from an unfair society. According to Ti-Grace Atkinson, the need for power drives males to continue persecuting women, claiming that the craving men have for,
the role of the oppressor is the basis and foundation of all human oppression.”
The origins of modern liberal feminism can be traced back to the 18th century. Individualism was a key element of this ideology, which indicated that individuals had the right to do anything they wanted without any interference from others. After you have reached a certain age, you become mature enough to take your own life decisions, and no one should have the right to stop you from doing the same. Liberal feminism is a style of feminist thought that emphasizes women’s power to retain their equality via their actions and decisions.
Its focus is on ensuring that women’s legal and political rights are equal to men’s because, for ages, they haven’t been treated equally, and that too without a valid reason. Liberal feminists contend that society believes that women are naturally less intellectually and physically adept than men. Because of this, almost every woman faces discrimination at the workplace, social gatherings, and marketplace. Liberal feminists think that female subordination stems from social and legal barriers that stop women from entering and succeeding in the so-called public sphere. They work to achieve gender equality through political and legal reforms.
Liberal feminists believe that societal and legal restrictions that prevent women from participating in public politics and economics are to be blamed for the sufferings of women at large. Liberal feminists advocate that liberals adhere to their ideas of universal human rights and equality and that men and women be treated equally, claiming that women are fundamentally identical to men. These theorists contend that laws should be gender-neutral, with no limits or particular support based on gender.
According to postmodern feminism, inequality is a social construct and is a result of patriarchy, hence it requires feminist reconstruction. The school emphasizes the process of self-definition and the strategy for raising awareness and giving voice to the unknown women’s experiences. For example, how a woman feels when she is touched by someone without her permission or feels when she is not treated equally like her brother. These experiences have to be addressed and brought up on a bigger platform. Also, both the liberal equality and difference theory ideas that women are intrinsically different from males are rejected by postmodern feminist legal scholars. This is because they believe that truths are numerous in number and are based on experience and perspective rather than single truths. Feminists use a tactic in the postmodern school to look at legislation and identify hidden biases within them. Postmodern feminists use deconstruction to show that laws should not be rigid because they are made by humans who have biases and thus contribute to female oppression.
Cultural feminism focuses on the intellectual ability of a person and bases its reasoning on the same. This school focuses on the disparities between men and women. It argues that feminism’s most important task is to change institutions to reflect and accommodate values that they see as women’s nurturing virtues, such as love, empathy, patience, and concern, rather than to include women into patriarchy and prove that women are similar to men and can function like men and meet male norms.
A feminist theory about a woman’s nature or essence tries to revalidate what cultural feminists see as neglected female characteristics. It’s also a theory that celebrates the differences between men and women and is okay with whatever the women have. It promotes independence and institution building and is founded on an essentialist understanding of the differences between men and women. They admit that men and women are different, and equality has to be brought in. But they believe that this equality has to be brought without changing the intrinsic values that women are born with.
India and Feminism
Our Constitution includes all of the safeguards necessary to defend the interests of women. We have all the laws, but the execution we need is still in its preliminary stage. In National legal service authority v. Union of India, it was held that the Preamble’s concepts of social, political justice, economic, and equality of status and opportunity, and assuring the dignity of the individual recognize the rights of one and all, and these essentials are designed for flowering the citizen’s personality to its fullest. Equality is a notion that aids citizens in realizing their full potential.
Social justice does not imply equality before the law on paper but rather a translation of the Constitution’s spirit inscribed in the Preamble. The Preamble is not enforceable , but it does give the constitution a right direction. The Preamble reiterates the importance of ‘individual dignity,’ which includes women’s dignity. When our Constitution including the preamble talk about women’s dignity, we must take it forward. Our Constitution, which is considered the fountainhead of all laws, is gender-sensitive. The mindset of those who drafted our Constitution was focused on equality and placing women on an equal footing in all aspects of life. As a society, it is up to us how we develop it and take it further.
According to feminist legal theory women’s experiences of assault and rape were and are also a result of laws that viewed them as less human and gave them fewer rights than men. These feminist legal theorists contended that the instances offered were not simply a description of conceivable possibilities but also an indication of real events, relying on them to substantiate claims that the law disregards women’s interests and disrespects their existence. Due to the same reason, they want a strong and considerable change in how the law looks at women.
It has already been mentioned above that feminist jurisprudence is a legal philosophy centered on gender equality in all spheres of life. In the case of Air India versus Nergesh Meerza & Ors., Vishakha v. State, and others, Indian judiciary ensured that women should not be subjected to workplace discrimination. Also, women have been represented in India on all social fronts, for example, after the passage of Article 243 D, one-third of Panchayat Raj offices were and are reserved for women or the Ujjawala scheme, which is a scheme that talks about preventing trafficking , rehabilitating and reintegrating victims of trafficking , or the SWADHAR scheme, which is a scheme for women in difficult circumstances or for women who are in need of help.
The Criminal (Amendment) Act 2013, also known as the Anti-Rape Act of 2013, was revised in the aftermath of the Nirbhaya Gang rape case, which sparked countrywide anger over the violent gang rape and subsequent death of a physiotherapy intern in Delhi. This amendment aims to offer a more expedited trial and harsher punishment for those accused of sexual offenses against women. The Hindu Succession (Amendment) Act, 2005, was passed to eliminate discriminatory clauses and allow women to inherit property. Women had been denied the right to inherit property before this legislation. These accomplishments demonstrate that feminism exists in India and is actively working to improve society and eliminate gender discrimination. But don’t confuse all these developments with the fact that enough has been done for the women at large. In our country, feminist jurisprudence has progressed at its speed.
However, some loopholes have to be filled, and some bridges have to be built to cover the gap between men and women. The feminist movement across the globe requires more support; numerous amendments need to be made. Also, numerous discriminatory laws, the gender pay gap still exists, women’s safety is still not guaranteed, and the promotion of rape culture through movies, songs, and jokes all must be curtailed. There is a list of things that we have to work on, and let’s not forget it. As a society, we have to fully understand this movement of feminism and also try to help it reach its goals.