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Exploring Feminist Jurisprudence: Law, Equality, and Women's Empowerment

The designated article talks broadly about the idea of law and feminism. The article starts with an introduction to law and its connection to feminism. All through the article, the statements of eminent feminist theorists have been outlined for reference.

In furtherance, the topics of social and economic equality of women and their political equality and citizenship in the contemporary world have been touched. Moreover, the fundamental themes of feminist legal philosophy.

Furthermore, examples of several legislations and statutes have been mentioned for better comprehension. The major schools of Feminist jurisprudence have been discussed as well. Therefore, the article takes reference from relevant databases and lays emphasis on the empowerment of women on a whole and across several spheres.

Introduction To Feminism And Law

The term Feminism traces its Latin origin from the word Femina, which means Woman. Feminist legal theorists have engaged in numerous debates and controversies regarding the legal stance of feminism. Mary Glendon quotes- Law recapitulates and orders social changes that have occurred previously. This simply means that law strives and operates in order to codify status quo.

One category of theorists are of the view that law has shaped women's roles and rights to make them more dependent and vulnerable. On the other hand, some theorists caution the feminists from being too dependent upon the law as a tool for reform in the society and promote a sense of equality.

Furthermore, the reactive stance of law doesn't provide much assurance to the feminist to initiate social change. However, as per Glendon, laws uphold as something of an ideal the rights, duties and relations they codify. Therefore, keeping aside their reservations, feminists strive to work with law to eradicate the inequalities against women.

Feminist legal theory has developed over time, with concerns such as equality, liberty, dominance and difference and diversity and globalisation prevailing at different points. (Chamallas, 2003)

Feminist philosophers of law also share certain basic criticism of traditional views of the nature of law and legal reasoning, of patriarchal assumptions as reflected in law and of the problems that women have in securing equal justice under law. (Smith, 1993, ch. 6)

Major Schools Of Feminist Jurisprudence

Majorly, there are three famous schools of feminist jurisprudence. They are furnished as follows:-
  • Liberal Feminism: The idea of independence and detachment from old stereotypes enacted by the male-dominated society has been proffered by this school of thought.
  • Radical Feminism: The concept of inequality of women and perception of male members as superior has been deeply criticised by this school of thought. Patriarchal traditional beliefs are also condemned.
  • Cultural Feminism: It is majorly concerned with the moral and ethical values of men and women. It is more or less similar to the radical feminism ideology.

Fundamental Themes Of Feminist Legal Philosophy

  1. Rule of Law: The nature of law is often presumed as to achieve coherence and maintain a sense of judicial impartiality. Feminist critics point out that conceptualising the rule of law in terms of coherence and consistency tends to reinforce and legitimate the status quo and existing power relationships. (Scales 2006; MacKinnon 1989). Therefore, a primary purpose of law can be understood as to maintain stability and set a standard of evaluating what is accepted and what is prohibited. Furthermore, feminist theorists have concluded that law makes systematic bias that are difficult to identify and oppose. (Minow 1991; Rhode 1989; Mackinnon1989) Thus, the primary task of a feminist theorist of law is to identify such biases in the legal system. Methodologies such as Genealogical analysis, conceptual analysis, or normative critique can be used for the same. (Barlet 1990)
  2. Equality and Difference: The primary task of the feminist philosophy of law is navigating the purpose of equality in patriarchy. On the other hand, there are different approaches to the same. The liberal feminists focus on achieving the Principle of Procedural Equality as articulated by Aristotle. Whereas, some other feminists, procedural justice raises a question whether there stands a difference between men and women that the law takes into account. For years, it was of the view that men and women must be treated differently as they are different. Feminists contended that such differences were exaggerated and the differences were largely biological rather than socially constructed. There lie biological differences like pregnancy and birth and other statistical differences like men are taller and women have comparatively longer life expectancies. Women are much more responsible for taking care of the family and men would earn more. The Feminist challenge is whether and how to acknowledge certain differences without entrenching stereotypes, reinforcing detrimental customs, promoting sexist socialization or incurring backlash and without compromising equality. (Rhode 1997; Minow 1991) Formation of the debate in terms of sameness or difference must be transcended by understanding equality. (Smith 2005)
  3. Reasonableness in Law: The standard of reasonableness is highly essential in law ranging from Tort law, criminal law or contract law. In traditional concepts, the standards were that of an average reasonable man, which indicated the gendered nature. However, upon controversy, it has been formulated as a reasonable person. More recent feminist attention has been directed towards de-legitimating masculinist perspectives of reasonableness and achieving equality in the understanding of reasonableness. (Chamallas, 2010) Areas of law such as that of Tort and Contract have been reassessed as reflecting bias in their structure, the types of claims they recognise, their understanding of injury and the compensation they provide. (Wriggins 2010)
  4. Public and Private: The public-private distinction is a central theme in the feminist perspective of law. As per Liberals, there remains a domain of private life that should be reserved for individual choice. On the other hand, Radicals raise the concerns that patriarchy and sexual dominance pervade private relationships and there are no clear lines to be drawn between actions that primarily affect the individual and actions that affect others more broadly. The same as taken a shape of debate in case of the Law of Prostitution. Some liberals are of the view that when prostitution is fully voluntary, it should be legally permitted and the rile of law is to prohibit coercive forms of the practice. Other feminists contend that legalised prostitution allows sex trafficking to flourish in its shadow. (Dempsey 2010)
  5. Human Rights: As per United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1979, Human rights are now said to apply equally to women and equal protection of the law is seen as applying equally to men and women. Although feminists encourage such reforms, they still remain concerned regarding the patriarchal environment in some societies. The Feminist philosophers, related to the Critical Legal Studies Movement, see rights as potentially masking underlying relationships of power and domination. (Scales,1986) Feminists, associated with the Critical Race Theory, voice concerns that dominance feminists assume an essentialism that silences the voices of African-American women. (Williams, 1992).
  6. Different Methodologies: With respect to methodologies, the feminist theorists have significantly laid their respective contributions in the philosophical arena. They were concerned regarding the male predominance in academic field.

Feminist epistemological accounts of epistemic injustice and the social nature of knowledge are especially salient to many questions about and within law. (McKinnon 2016).

Testimonial injustice occurs when people are discounted as credible because of stereotypes such as those rooted in sex or race; it may also occur when people are assessed as overly credible for similar reasons, likely to the detriment of the credibility accorded others. (Medina 2013)

Their works regarding Relational Metaphysics has helped in analysing how legal institutions should study connections among people, including the relationship of case.

Reproductive And Marriage Rights

Legal bias in marriage is apparent. However, same-sex marriage has been recognised in many jurisdictions across the globe. The U.S. Supreme Court in Obergefell v. Hodges[1] held that prohibitions of same sex marriage violate constitutional guarantees of due process and equal protection. Several feminists have hailed decision. However, some argue that the extension of marriage rights to same-sex couples creates a fundamentally inegalitarian relationship.

On the other hand, reproductive autonomy relating to the abortion rights remains highly debatable. Feminist arguments, however, emphasise the control of women over their body. In Griswold v. Connecticut[2] it was held that the constitutional right to privacy was understood to protect individuals from state interference with certain decisions affecting their private lives, particularly decisions about marriage, family, sexual intimacy, and procreation.

Political Equality And Citizenship

While the basic right to political equality is taken for granted in many societies today and is explicit in the norms of international law in some cultures women are still not equal citizens (CEDAW 1979). Some are unable to vote, hold office, attend school, engage in business, or travel about freely. Women should receive equal representation in the public sphere and start holding important offices and enjoy the right to vote.

Equal citizenship is a presumptive value in the modern world. Problematically, in law the burden of justification typically lies with the reformer and precedent favors the status quo.(MacKinnon 2006)

With the inception of United Nations, feminist legal scholars have pressed and raised concerns regarding the women rights internationally. International conferences have promoted dialogue regarding the problems and prevalent issues and concerns faced by women in the contemporary world. Especially since the 1980s, these efforts have been aided by mass communication, international travel, and the Internet. (Rhode & Sanger, 2004)

Violence Carried Out Against Women

J.S. Mill argued that the only legitimate reason for interference by the state in the affairs of individuals is to prevent one person from harming another. From Confucius to Gandhi, personal security and freedom from fear is a value that the state is expected to secure and maintain.

The 2012 United Nations Millennium Development Goals Report observed that although equal number of boys and girls are now attending school across the globe, violence against women continues to undermine progress towards all goals. The acts of domestic chastisement and marital rape have been heavily criticised by the feminist theorists. However, these are still not crimes in many criminal law statutes.

Over the past 30 years, there have been significant improvements in the laws across the globe regarding prevention of violence against women. Rape laws have been reformed to varying degrees in many societies, although even the best arguably still have far to go. (McGregor 2005; Estrich 2001; Taslitz 1999; Schulhofer 1998) Most of the Western Nations no longer recognise the corroboration of rape by witnesses. International law has recognised rape of women in war as a crime against humanity.

Social And Economic Equality

Feminist legal theorists have centrally focused in achieving social and economic equality for women in the society. They aim to address discrimination against women in school, employment and housing.

In the United States, The Equal Protection Clause of the 14th Amendment scrutinises the state-imposed categorisations based on race. The Equal Pay Act, 1963 and The Civil Rights Act of 1964 aim at prohibit unequal treatment on the grounds of gender.

In all societies the poorest women carry compounded burdens of discrimination by race, class, caste or religion as well as sex discrimination. (Roberts 1995; Chen 1995; Crenshaw 1989; Matsuda 1987)

The establishment of Women's Unions and Cooperative Societies are certain steps to empower women in the society. With ideas like Grameen Banks and micro-lending, Muhammad Yunus even received the Nobel Peace Prize in the year 2006.

In conclusion, the connection between law and feminism underscores the struggle for equality and justice. The patriarchal problems in the society have been discussed through the lens of feminist theorists. The three major schools of feminist jurisprudence have been outlined in brief.

From reproductive rights to marriage rights to social and economic rights, the ideas of feminist legal scholars have shed light on these respective spheres. Major concerns and problems suffered by women have been discussed at major international conferences like G20 as well.

In essence, women empowerment has been an important contention in the contemporary world and reference to the feminist legal principles is highly essential.

The secondary sources that were referred for research work are furnished as follows:
  • Autumn, Oxford Journal of Legal Studies, 1989, Vol. 9, No. 3, pp. 383-394
  • Summer, NWSA Journal, (1992), Vol. 4, No. 2, pp. 212-218
  • West, Robin, "Feminism, Critical Social Theory and Law," (1989), University of Chicago Legal Forum: Vol. 1989: Iss. 1, Article 5. Available at:
  • Garg, R. (2021, September 20). Feminism in modern jurisprudence - iPleaders. iPleaders.
  • Feminist Philosophy of Law (Stanford Encyclopedia of Philosophy). (2017, October 24).
  • Bartlett, K., 1990. Feminist Legal Methods, Harvard Law Review, 1039(4): 829�888.
  • Ackerly, B.A., 2008. Universal Human Rights in a World of Difference, Cambridge: Cambridge University Press.
  1. 576 US 644 (2015)
  2. 381 US 479 (1965)

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