(Published in LL.M. Law Journal, 2011 publication of LL.M. Student Forum, Nepal Law Campus.)
'Women', one of the most frequently used term in the public discussions but hardly understood the way it should be understood. At the same time, 'women', performing a various roles in the private sphere of life as mothers, daughters, sisters, wives, beloved, and friends, are never a complete whole but dependent in the relationship with some other factors whether be it father's support or husband's benediction. It is, in most of time, a forgotten fact that women are female humans and should be treated as upto the minimum level of human dignity. Historically, they were denied voting rights and denied literacy, and till day, at many instances or majority of time, are denied equal pay for work of equal value and are subjected to various gender based and social biases. Even today, Women are subjected to unspeakable oppression and cruelty in different parts of the world including genital mutilation and honour killing. Consequently, discrimination in any form including gender, social, economical or political mirrors the grave reality of the society- the time present.
'Women', treated as a sex or a gender, has a long history of being and becoming women therein and if the basic idea of being and becoming women is related to some social constructs of wide range of positive terms such as loving mother, kind wife, beautiful women to negative terms, including bitch, whore, prissy, passive, weak, inferior and uneducated . It is a time to kill the idea women in the mind of the society for women, in search of real women, and to get rid of stereotypes. In the past, they have desperately struggled; in the present they are struggling to redress the past and may be in the future, they would like to redress today's present if the world makes the same mistake of not understanding 'women' in real way.
PART I WOMEN: FROM DECLARATION OF SENTIMENTS TO WORLD TODAY
The opening salvo in the battle for Women and Women's Rights was fired in 1848 by the Grande dame of U.S. feminism, Elizabeth Cady Stanton with the help of her colleagues through Seneca Falls Convention in July, 1848 and they sought nothing less than a revolution. When the Declaration of Sentiments was presented in the Convention, as stated by the National Women’s History Project, women’s grievances included the following :
• Married women were legally dead in the eyes of the law.
• Women were not allowed to vote.
• Women had to submit to laws when they had no voice in their formation.
• Married women had no property rights.
• Husbands had legal power over and responsibility for their wives to the extent that they could imprison or beat them with impunity.
• Divorce and child custody laws favoured men, giving no rights to women.
• Women had to pay property taxes although they had no representation in levying of taxes.
• Most occupations were closed to women and when women did work, they were paid only a fraction of what men earned.
• Women were not allowed to enter professions such as medicine or law.
• Women had no means to gain an education since no college or university would accept female students.
• With only a few exceptions, women were not allowed to participate in the affairs of the church.
• Women were robbed of their self confidence and self respect and were made totally dependent on men.
The fact to be remembered here amazingly is that New York Herald printed the entire Declaration of Sentiments in order to mock it and Elizabeth Cady Stanton said that it was “just what I wanted. Imagine the publicity given to our ideas by thus appearing in a widely circulated sheet like the Herald. It will start women thinking, and men, too; and when men and women think about a new question, the first step in progress is taken.”
The background history of Seneca Falls Convention unfolds the sagas of discrimination. More visibly, Elizabeth Cady Stanton witnessed the refusal of the men antislavery leaders to seat women delegates in International Antislavery Conference in London in 1840. The best part of London Conference was that she met Mott, a Quaker activist and they were discriminated but it ignited the fire and in her own words, she later recollected, " My experience at the World Anti-slavery Convention, all I had read of the legal status of women, and the oppression I saw everywhere, together swept across my soul, intensified now by many personal experiences. It seemed as if all the elements had conspired to impel me to some onward step. I could not see what to do or where to begin my only thought was a public meeting for protest and discussion." The convention was organized and with the course of time, women’s issues and rights emerged as an issue and a priority for action on an international scale in order to break the chain of gender discrimination and unequal treatment against women everywhere in the world.
Now, it is more or less clear that women and men have the same social, economic, and political status for women as for men and women will not face discrimination on the basis of their sex or gender, in the paper if not in the practice. Formally, the international instruments such as United Nations Documents such as Universal Declaration on Human Rights, 1948, International Conventions on Civil and Political Rights, 1966, International Conventions on Economic, Social and Cultural Rights, 1966 and Convention on Elimination of All forms of Discrimination against Woman, 1979 recognize and respect women's basic human rights including the right to life, the right to equality, the right to be free from all forms of discriminations, the right to the highest standard attainable of physical and mental health and reproductive rights.
The rights that are conferred in the national and international documents are yet to be implemented in the practice in full extent and the issues that are settled in the paper works are not settled actually. Arguably, women at world today are not in equal footing in comparison to the male counter parts and still there is a necessity of doing something ‘in defence of women’s right.’
PART II: WOMEN AS SUBJECTS OF LAW: REASONABLE MAN V. REASONABLE WOMEN
The first simple query related to the status of women revolves around the issue whether women are the subject or the object in relation to law and society. Absolutely, on the ground of being human, women are supposed to be the subject of law but the practice, to be precise, the male culture of law treats or prefers to treat women as objects. Though the time has changed and the context has changed but still the residual of the male culture of law is seen or reflected in various legislations even today. For instance, an update of the study on discriminatory laws relating to women conducted by FWLD in 2009 identified 103 provisions and 92 schedules in various Acts and regulations which continue to discriminate against women both in letter and in effect.
Referring to Betty Friedan’s work The Feminine Mystique, she argued that the society does not permit women to accept or gratify their basic need to grow and fulfil their potentialities as human beings. She called the Suburban American Home “a comfortable concentration camp” because it restricted women’s lives so severely. Likewise, the laws treated women as object rather than subjects in the past. The pain of being the object of property that women experienced is hardly described in the words. For instance, Illinois Supreme Court denied a licence to practice law to Myra Bradwell in 1969 stating that at common law, married women were said to be under "coverture" or under the protection of their husbands. Likewise, according to Usha Ramanathan, women in law are portrayed in mostly three categories: wife, non-wife and criminal. Therefore, the concept of reasonable woman standard has been mooted by feminist writers and that is in the centre stage for the modern times.
In this light, the crater between Reasonable man and Reasonable women is vivid. The concept of reasonable man was created for justicing convenience and judges, attempting to unravel the mysteries of human conduct, intent and motive, have for years turned to the reasonable man for guidance. The phrase ‘reasonable women’ was never articulated then. The basic reason could be that legislators kept women, minors and the mentally incapable together and emphasized over the proprietorship of man over woman. For instance, The law indeed moves around reasonable man, most often criticized as being male cultured and women around the world have found themselves and their experiences and perceptions largely excluded from the purview of the law. Additionally, the legal language marginalized women by saying that "he" includes "she". The legal language and reasoning has always been gendered, informed by men's experiences and derived from the powerful social position of men, relative to women. Now, it is time to challenge the traditional view that ‘The law's cognition of women is refracted through the male eye rather than through women's experiences and definitions.’ Therefore, there should be the concept to reasonable women taken into consideration for justicing convenience and ‘remedying the wrong done to women.’
PART III: WOMEN, FEMINISM AND POPULAR DEBATES IN FEMINIST JURISPRUDENCE
'Women' as a principal subject in feminism and feministic 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.' According to the thoughts of feminism and feminist jurisprudence, the traditional conception of 'women' has to be obsolete and the new notion based on the human dignity is to be recognized in more profound way at the best. Particularly, feminist jurisprudence seeks to analyze and redress more traditional legal theory and practice. The notion charts that the law which does not acknowledge or respond to the needs of women, must be changed.
The terms such like 'women', ‘feminism’ and 'feminist jurisprudence' have multi-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. It is always true that "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.
The major feminist issues as traced are:
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
Amidst, 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.
While doing so, the crucial thing comes in the stage, is that how women should be treated? The benchmark of the treatment should be based on cultural, liberal, radical or modernist or pos modernist feminist thoughts. The agendas of Women are deeply rooted in two types of debate: reformist/radical debate or as the sameness/difference debate in the perspective feminist jurisprudence.
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.
CONCLUSION:
There are still two valid questions - what is meant to be women? and what are feminism and feminist jurisprudence for? Now, the most important issue is that women have the past and necessarily the present but where is the future? To this point, the basic notion says that the future means the time of being and becoming 'exclusive women' and 'women exclusively'. The idea of exclusivity demands the freedom from everything that is negative in the connotation or indifference at many instances. The idea of today's women should be deconstructed and the new concept of women should be reconstructed in exclusive manner.
For much of said unsaid rational and deconstructionist thoughts, the direct implication refers to 'exclusive women' that is the value free concept and free from stereotypes, and socially and culturally imposed constructs. In legal discourses, it is expedient that feminist jurisprudence finds liberal legal theory and methods of reasoning to be largely responsible for the browbeaten condition of women. 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. The way forward is to realize the exclusivity of women and recognize 'exclusive women' under the new horizon of freedom and human dignity. What makes 'women' 'exclusive women' is yet to be discussed and debated in the public sphere locally, nationally, regionally and internationally, in terms of getting it or losing it in the future.
References:
1. Shilaja Nagendra, Women's Rights, ABD Publishers, India, 2006.
2. Elizabeth Cady Stanton, Eighty Years & More: Reminiscences 1815–1897, Northeastern University Press, Boston, 1993.
3. Sapana Pradhan Malla and Ayasha Sen, "Engendering the Nepalese Constitution: A Women Perspective", Nepal Bar Council Law Journal 2008, p. 95.
4. Frances Olsen, "From False Paternalism to False Equality: Judicial Assaults on Feminist Community, Illinois 1869-1895", (Feminist Theory Within the Law), Frances E. Olsen (ed.)), Dartmouth, Aldershot, England, 1995, pp.416-438.
5. Usha. Ramanathan, “Reasonable Man, Reasonable Woman and Reasonable Expectations”, (Engendering Law: Essays in honor of Lotika Sarkar, A Dhanda and A. Parashar (eds.)), Eastern Book Co., Lucknow, 1999, pp. 33-71.
6. S.P. Sathe, "Gender, Constitution and the Court", (Engendering Law: Essays in honor of Lotika Sarkar, A Dhanda and A. Parashar (eds.)), Eastern Book Co., Lucknow, 1999.
7. M.D.A. Freemen (ed.), Lloyd's Introduction to Jurisprudence, Sweet & Maxwell, London, (6th edn.), 1996
8. Surendra Bhandari, Court-Constitution & Global Public Policy (A Study on Nepalese Perspective),Democracy Development &Law, Anamnagar, Kathmandu, (First edn.), 1999.
