(Excerpt of paper -Feminism and Feminist Jurisprudence @ 2010- I still feel that pen drop silence in the class while I was presenting this paper... That was an honour to a presenter who did not boast or defend any of her ideas but just present with proper ground.)
'Women' as a principal subject in feminism and feminist 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' 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".
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. 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.
On the basis of things mentioned above, the major feminist issues can be traced as:
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 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. 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.
The inquiry of feminist Jurisprudence as suggested by Heather Wishik incorporates following seven questions:
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. Therefore, this brand of feminist jurisprudence belongs to the genre of radical anti-liberalism. 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 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.
(P.S. The paper was furnished with citations wherever cited and due to technical reason citations are missing in the post. My humble apology in this regard- I m not a plugiarist)
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