Feminism
A legal theory in feminism
especially in the period of 1840 to 1870 included abolitionism which gave rise
to the women’s movement who in their quest for equal rights of women that
included the ownership to property and right to vote, the sort out to abolish
slavery as well. Abolitionism garnered male supporters for the women’s movement
like Frederick Douglass, Henry Blackwell and William Lloyd Garrison. [1]
The First Wave of the
Feminist Movement.
The Women’s Suffrage Movement
The Women’s Suffrage
Movement in the United States in the period 1848-1920, formed a significant of the “First Wave” of the
Feminist Movement. Woman suffrage is defined as the right of
women to vote. The Women’s Suffrage Movement is the
organized efforts to bring the right to vote to women. The 19th Amendment was an amendment to
the US Constitution that was passed in 1819 and ratified on August 18th, 1920.It granted American women the right to vote, a
right known as woman suffrage. Women's suffrage has been granted at various times in various countries
throughout the world.
The Origins of the
Suffrage Movement
Women in the 1800s. Women couldn’t vote,
hold public office, or sit on juries. In most states, a
woman’s property became her husband’s when they married. Men who physically abused their wives were
rarely. Before the campaign for woman suffrage began
in earnest in 1848 women had been very active in the abolition movement.
Proponents of the Suffrage Movement.
Advocates of Women’s rights such as Sojourner
Truth and the Grimke sisters had given public speeches against slavery and even
about women’s rights. Many people considered their actions
inappropriate for women in that time. Before
the Civil War, black and white men and women worked together for women’s rights
and the abolition of slavery. Frederick Douglass,
an advocate for equal rights in the United States, demanded the vote for women
in 1848. The Grimké sisters, nationally prominent
abolitionists, connected the inequalities of women, both white and black, with
slavery.
Women in the
abolition movement recognized parallels between the legal condition of slaves
and that of women. The radical abolition movement had the greatest
impact on women’s rights. Participation in the Anti-Slavery movement
helped women develop public-speaking and argumentative skills that carried over
into the women’s rights movement. Both white and black women were excluded from full membership in the
American Anti-Slavery Society until 1840. Women responded by forming their own separate female auxiliaries and by
1848.
The Seneca Falls
Convention
The Seneca Falls
Convention of 1848 was the “birthplace of the women’s rights movement.” Elizabeth
Cady Stanton and Lucretia Mott called together the first conference to address
women’s rights. It came to be known as Seneca Falls Convention. The conference
was called together after Mott and Stanton were not allowed to speak at the
world anti-slavery convention, even though Mott had been an official delegate. Conference
took place in Seneca Falls, New York, July 1848.
Elizabeth Cady Stanton attended the 1840
Anti-Slavery Convention and her experience led her into the struggle for
women’s rights. Born in Johnstown, New York, November 12, 1815, before
centering her energy on women’s rights, Cady was active in the abolition
movement. She drafted the Seneca Falls Declaration with the help of Martha C.
Wright, Lucretia Mott and Mary Ann McClintock. Along with Susan B. Anthony,
Stanton founded the National Women’s Suffrage Association in 1869. She began
the women’s rights newsletter “The Revolution.” She died in October 26, 1902. Elizabeth Cady
Stanton and Frederick Douglass argued that voting rights
would give women the political power they needed to win other rights.
Elizabeth Cady
Stanton and Lucretia Mott met in 1848 to organize the convention to promote
“the social, civil, and religious rights of women.” inspired by their
experience at the World Anti-Slavery Convention. The women wrote out
their complaints in a document modeled on the Declaration of Independence.
The document was also called
Declaration of Sentiments and Resolutions
The Seneca Falls
meeting attracted 250 sympathizers, including 40 men. Among them, famous abolitionist leader Fredrick
Douglas attended. The delegates who
attended the conference believed that women should be afforded better
opportunities for education, equal relationship within marriage and employment. Also that American women were autonomous
individuals who deserved their own political identities. What this meant, among other things, was that
the delegates believed women should have the right to vote. The Seneca Falls Declaration was signed that day.
With regards to property, the legislatures in state after state ultimately
passed the Marriage Property Act that was formulated to deal with the problems
of common law coverture restrictions in place at the time.[2]
The Seneca Falls Declaration of 1848 outlined
the women's rights movement of the mid-19th century. As can be seen in the opening passages, the
document was modeled after the Declaration of Independence.
“…We hold these truths to be self-evident:
that all men and women are
created equal; that they are endowed by their Creator with certain inalienable
rights; that among these are life, liberty, and the pursuit of happiness; that
to secure these rights governments are instituted, deriving their just powers
from the consent of the governed.”[3]
It compared the treatment of women by men to
the way the British King had treated the colonists. Contained a list of grievances and resolutions for change
“. . . The history of mankind is a history of
repeated injuries and usurpations on the part of man toward woman, having in
direct object the establishment of an absolute tyranny over her. . . . He has
never permitted her to exercise her inalienable right to the elective
franchise. He has compelled her to
submit to laws, in the formation of which she has no voice. . .”[4]
The women demanded to be given all the rights
and privileges which belong to them as citizens of the United States. The
Declaration of Sentiments ended with a call for women’s suffrage and after much debate and discussion, the
suffrage resolution narrowly passed.
Other Laws on equality included the 14th
and 15th amendments that were passed between 1868 and 1870. The 15th
amendment granted African-American men the right to vote. This disappointed many women who thought African
American men and women would be enfranchised together. This led to a split between African Americans
over whether men should get vote before women. The 14th Amendment to
the Constitution added “male” to its definition of eligible voters. Women would
need another amendment explicitly granting them the franchise. Both Susan B. Anthony and Elizabeth Cady Stanton
were furious that Congress had given the vote to black men but denied it to
women.
Susan B. Anthony was a skilled organizer who built the women’s movement
into a national organization. In the 1830s, she began fighting for women’s property rights, as well as
equal pay for women. In 1849 she began
working against the use of alcohol. She participated in the founding of several
women’s rights organizations until 1900, when she retired. Her work led to her
commemoration on a $1 coin from 1979 to 1999. Susan B. Anthony tried several
times to introduce an Amendment bill in the late 1800s, but it was always
killed in the Senate. In 1851, Anthony and Stanton began to work together but
because Stanton wanted a more radical
women's rights platform than just voting rights, the two sometimes disagreed. For
many years, the two women crossed the nation giving speeches and trying to
persuade the government that society should treat men and women equally. In a speech, given
following her arrest for attempting to vote in the 1872 election, Anthony
argues that respect for America's fundamental principles requires that women be
allowed to vote.
“In thus voting, I
not only committed no crime, but, instead, simply exercised my citizen's right,
guaranteed to me and all United States citizens by the National Constitution,
beyond the power of any State to deny.”
Sojourner Truth,
famous for her abolitionist speeches, also spoke powerfully on behalf of
women’s rights. She was an African American Woman who was a former slave famous
for her “Ain’t I a Woman?” speech at a women’s convention in 1851. Her speech
was powerful and it presented a graphic reminder of the racial and class issues
that divided women.[5] Maria
Mitchell was a famous astronomer whose Quaker upbringing taught that men and
women were intellectually equal. She
helped found the Association for the Advancement of Women in 1873.
Following
the convention, the idea of voting rights for women was mocked in the press and
some delegates withdrew their support for the Declaration of Sentiments. However, Stanton and Mott persisted and they
went ahead to spearhead additional women’s rights conferences and they were
eventually joined in their advocacy work by Susan B Anthony and other activists.
A suffrage amendment was introduced in Congress in 1868 and a later version
referred to as the Anthony Amendment was introduced in 1878 and every
subsequent year until 1896, when it disappeared from the congressional agenda
until 1913.[6]
The demand for woman
suffrage presented a vision of independent women that seemed to threaten social
structures. Many men and some women
believed that women were not suited to vote because they could not think
clearly and independently. Church
leaders taught that women by nature were believed to be dependent on men and
subordinate to them. Many thought that women's place was in the home, caring
for husband and children. The argued that entry of women into political life might lead to disruption of the
family.
The Second Wave of
the Feminist Movement
The second-wave of
the Women's Movement, Feminist Movement, or the Women's Liberation Movement in the
United States refers to a period of feminist activity which began during the
early 1960s and lasted throughout the late 1970s. Whereas first-wave
feminism focused mainly on overturning legal obstacles to equality that is,
voting rights and property rights, the second-wave feminism successfully
addressed a wide range of issues such as unofficial inequalities, official
legal inequalities, sexuality, family, the workplace, and, perhaps most
controversially, reproductive rights.
The
modern Women's Rights Movement of the 1960s was a second wave of activism. The women's movement of the 1960s drew
inspiration from the civil rights movement led by Martin Luther King Jnr. It
was made up of members of the middle class and it was also caused by the
sexual revolution of the 1960s sparked by
the development of the birth-control pill in 1960
The
modern women’s liberation movement is usually believed to have begun in 1963,
when "Mother of the Movement" Betty Freidan published her bestseller,
“The
Feminine Mystique”. In 1964, President John F. Kennedy’s Presidential
Commission on the Status of Women then released its report on gender
inequality. The report revealed great
discrimination against women in American life-causing discontent in many women.
Changes
that took place on the home front during World War II such as the expansion of
the role of women in the workplace helped to lay the foundation for the women’s
rights movement. However women were displaced from their wartime jobs by
returning veterans and many returned in the 1940’s and 1950’s to the
traditional role of housewife and mother. The
years following World War II saw a major push for returning women to their
pre-war positions as homemakers.
The
consumer culture impacted the role of women as increasingly their role as chief
consumer of the family was emphasized through advertising. Media,
both TV and print glorified the role of traditional homemaker.
There were columns,
books and articles by experts telling women their role was to seek fulfillment
as wives and mothers. Career opportunities for women were limited to nursing,
teaching, domestic service, social work, retail sales and secretarial work. Few
were promoted to managerial positions and their pay was significantly less than
what men earned
Betty Freidan
Betty Freidan was
born on February 4, 1921. In her book, she depicted the roles
of women in industrial societies. She focused most of her attention on the
housewife role of women. She referred to the problem of gender roles as
"the problem without a name". The book became a bestseller and was
the cause for the second wave of feminism in the 1960s.
In
‘The Feminine Mystique,’ Betty Freidan writes about a unique problem that women
faced during the 50's and 60's. Freidan documented the emotional and
intellectual oppression that middle-class educated women were experiencing
because of limited life options.
“The problem
lay buried, unspoken, for many years in the minds of American women. It was a
strange stirring, a sense of dissatisfaction, a yearning that women suffered in
the middle of the twentieth century in the United States. Each suburban wife
struggled with it alone. As she made the beds, shopped for groceries, matched
slipcover material, ate peanut butter sandwiches with her children, chauffeured
Cub Scouts and Brownies, lay beside her husband at night--she was afraid to ask
even of herself the silent question--"Is this all?"
Women
were living ungratifying lives as housewives by not pursuing a career.
According to Freidan, the main goals of young women included to marry and to
settle down in the suburbs. She writes that the birthrate was soaring, and
women had no interested in obtaining jobs. This led to women having a feeling
of emptiness and unhappiness inside them, and they could not put their fingers
on what was causing these emotions. Women only held jobs if they absolutely had
to in order for the family to get by. Almost all women faced this problem,
according to Freidan, but few were willing to confront it.
Betty
Freidan brought out the issues of how women fought for their rights to an
education and a career throughout the 20th century and yet many women of the
50's and early 60's reverted back to the housewife role and mother. She stated
that 47 percent of American women went to college in the 1920's and by the
1950's it was down to 35 percent. Freidan also pointed out that women of the
1950's and 1960's were concerned with beauty and femininity, dyeing their hair
blond, looking as pretty as they could for their husbands but not at all
concerned about an education. Their goal in life was to find a man and make him
marry them. They did not think that they would have needs or wants beyond
pleasing a man, having a clean house, raising children, and looking beautiful.
The
widespread popularity of Betty Freidan’s The Feminine Mystique gave women a
chance to re-examine their own lives in light of the questions it raised.
Freidan’s novel gave women who were raised with the belief that their natural
role was that of the homemaker exposure to other possibilities for personal
fulfillment. Feminists
contended that no woman could find true personal satisfaction in the role of
homemaker. Though many women were dissatisfied with this lifestyle, there were
some who were content as wives and mothers.
National Women’s
Organization (NOW)
It
was founded in 1966 and acted as a civil-rights group dedicated to achieving
equality of opportunity for women. It was founded by a group of people,
including Betty Freidan, and Rev. Pauli Murray, the first African-American
woman Episcopal priest. Betty Freidan became the organization's first
president. The goal of NOW was to bring about equality for all women. They
campaigned to gain passage of the ERA amendment at the state level.
NOW
works to eliminate discrimination and harassment in the workplace, schools, and
the justice system; to secure abortion, birth control and reproductive rights
for all women and end all forms of violence against women; eradicate racism,
sexism and homophobia.
As
president during its first three years, she wrote NOW's founding statement
demanding full equality for women in the mainstream of American life. She also
led the organization in its decisions in 1967 to support the Equal Rights
Amendment, ERA, for women and legalized abortion.
Initially
Freidan and other feminists criticized women's role as primary caretaker of the
family because they believed that status and success could be achieved only
through work outside the home. By the 1980s, she and others had come to believe
that women and men desire both the prestige and fulfillment that come from work
outside the home and the love and identity gained through marriage and children.
In
The Second
Stage (1981) Freidan argued that feminism had become too woman-centered
in the 1970s and had polarized the relationship between the sexes. She urged
feminists to move away from this stance and join with men and even
conservatives on these new family issues.
Freidan
stepped down from the presidency in March 1970 but continued to be active in
the work that had sprung largely from her pioneering efforts, helping to
organize the Women's Strike for Equality, held on August 26, 1970, the 50th anniversary
of woman suffrage, and leading in the campaign for ratification of the proposed
Equal Rights Amendment to the U.S. Constitution.
Legal achievements
Education
and sports
Title
IX of the 1972 Education Amendments and the Women's Educational Equity Act of
1975 removed great inequalities in education. It opened doors for women
athletes, as did Billie Jean King's 1973 Battle of the Sexes tennis victory.
Women's sports began to organize and as Title IX was enforced, women athletes
became common.
Many
of the elite men's colleges and universities began to admit women, and women's
schools began to admit men. The nation's Military Academies were forced by
Congress to admit women.
Employment
and economics
Feminist
activism led to enforcement of the Equal Pay Act and Title VII of the Civil
Rights Act. The Equal Employment Opportunity Act of 1972 aimed to remove
remaining inequalities in pay, hiring, and the workplace. The Equal Credit
Opportunity Act of 1974 made illegal discrimination in credit, a major problem
for women seeking equality.
In
1978, the Pregnancy Discrimination Act gave expecting mothers job protection.
The courts also lent their support in striking down sexist laws. Alimony and
divorce laws were equalized and state laws barring women from juries were
overturned by the Supreme Court.
Rape
and violence
Sexual
assault and domestic violence became central targets of women's activism. The
crime of rape began to assume its contemporary form. Existing laws were
extended to include marital rape usually, in practice, of wives by husbands,
which was made illegal in every state), and sex when a person is too physically
or mentally incapacitated to consent.Feminists, led by Gloria Steinem and her Women's
Action Alliance, worked to create domestic violence shelters and rape crisis
centers non-existent prior to the Women's Movement.
Reproduction
Access to
contraception and abortion continued to be major issues for women's rights
advocates.
The contraceptive
pill was approved by the FDA in 1960 for use by married women only. The
"age of majority" law was changed from age 21 to 18 in 1972.
The
first hormonal contraception method, the combined oral contraceptive pill,
technologically revolutionized control over reproduction, while laws
restricting access to birth control and abortion were rolled back by
legislative action and judicial decisions such as Griswold v. Connecticut
(contraception, 1965) and Roe v. Wade (abortion, 1973).
Following
the Griswold ruling that allowed all married persons access to contraception,
the Supreme Court ruled in the early 1970s that all unmarried persons were also
allowed contraception, under the Constitution's implied right to privacy
Before
these laws women-run reproductive health clinics and several clandestine
abortion services provided women with immediate access.
Women's
groups largely supported abortion rights, however there was a significant
minority which spoke out in opposition.
Feminists
for Life was formed by pro-life women in 1972. Alice Paul, leading suffragette,
author of the Equal Rights Amendment, and feminist activist until her 1977
death was passionately pro-life, over which she clashed with many of the new
feminists
Legalization
of Abortion
Legalized
abortion, another goal of the feminist movement, was realized by the 1973
Supreme Court Decision in the case of Roe v. Wade. The justices were faced with
the difficulty of deciding on the issue that was fervently debated by all
sections of society. Essentially, the decision was based on a woman’s right to
privacy in her decision to terminate a pregnancy. Although the Supreme Court
ruled that the right of personal privacy applied to the abortion decision, they
did not state that abortion was and undeniable right. The decision left states
in control of regulation of abortion.
Equal
Rights Amendment
In
1972 the proposed Equal Rights Amendment to the Constitution passed Congress.
It had been proposed by Alice Paul and the National Woman's Party in the 1923
and reintroduced every Congress thereafter. In the 1950s, Dwight Eisenhower
became the first President to explicitly say that he favored the full equality
of women and also endorsed the ERA. It passed the Senate twice that decade, but
in a modified version which rendered it moot, and was unsupported by ERA
advocates.
The
Feminine Mystique caught the attention of many women and got them to thinking
about where they have been and where they were headed. One thing was clear,
women wanted to be somebody, not just somebody's wife or somebody's mother.
Women were attending consciousness raising sessions and beginning to question
old world values while trying to forge new world values of their own. By the
end of the 1960s, the women's movement had succeeded in challenging nearly all
of America's traditional cultural assumptions about women's proper place, and
had become one of the media's biggest news items.
By
the early 1980s, it was largely perceived that women had met their goals and
succeeded in changing social attitudes towards gender roles, repealing
oppressive laws that were based on sex, integrating the boys' clubs such as
Military academies, the United States armed forces, NASA, single-sex colleges,
men's clubs, and the Supreme Court, and illegalizing gender discrimination.
Today women have so many rights that others, like Betty Freidan fought to
achieve. It is because of her, and others like her that women today have
careers, and families, they vote and run for office, they live and even age in
a society that allows much greater opportunities for success, happiness, and
fulfillment, their mothers and grandmothers experienced.
What is Feminism?
As an ideology, it can be described as that that
opposes the political, economic, and cultural relegation of women to positions
of inferiority and basically affirms women’s equality with men, and rejects
patriarchy[7].
What is Feminist Jurisprudence?
Feminist jurisprudence is a burgeoning school of legal
thought that encompasses many theories and approaches to law and legal issues.
Each strain of feminist jurisprudence evaluates and critiques the law by
examining the relationship between gender, sexuality, power, individual rights,
and the judicial system as a whole. As a field of legal scholarship and theory,
feminist Jurisprudence had its beginnings in the 1960s. By the 1990s it had
become an important and vital part of the law, informing many debates on sexual
and Domestic Violence, inequality in the workplace, and gender-based
discrimination at all levels of U.S. society.
Historical
Introduction on Constitutional “Equality” in Feminist Jurisprudence
Unlike the partial and liberal measures that were
present such as equal pay legislation, feminist jurisprudence does not pacify
women’s oppression but promised a general theory of law that had practical
application at the time the idea began to develop. This is because[8],
it appeared to offer the combination of theory and practise and because it was
grounded in women’s experience; the ideal feminist jurisprudence was a way out
of the stalemate of liberalist feminist theories of law reform[9].
In The United States of America
After Suffrage, Alice Paul and the National Woman’s
Party supported the first equal rights amendment for women. This version was
first introduced to Congress in1923:
“Men and women shall have equal rights throughout the
USA and in every place subject to
its jurisdiction. Congress shall have power to enforce this article by
appropriate legislation…”
From this, it was argued that the amendment would
eliminate the many distinctions between women and men in laws regulating
employment, families, citizenship and criminal sentences[10].
Some of the issues that were trying to be dealt with,
that faced the females were;
- State laws at the time (The 1920’s) specified
maximum hours or minimum wages for women workers.
- Family Law was almost entirely sex-specific. An
example was a strong presumption that mothers would have to serve as sole
custodians of children after a divorce.
- In many states, married women were still denied
full rights to contract and own property despite the passage of the
Married Property Acts[11].
From this, a group called the ERA was established to
help solve these concerns. ERA supporters wanted to eradicate these and other
discriminatory laws. However, the ERA was not supported by a vast majority of
women’s right activists the 1920’s and for decades to come because they worried
about the consequences of eliminating sex-specific family laws as well as laws
“protecting” women workers because of their special needs and responsibilities.
Despite this, the ERA was supported by economic conservatives that were opposed
to all government regulations of employment.
The
PCSW Compromise
In 1962, President Kennedy established the President’s
Commission on the Status of Women (PCSW) with Eleanor Roosevelt as its chair
and had most of its members being ERA opponents.
This was a stage of which many women had become
involved in the struggle for racial and economic justice.
From this body, Pauli Murray[12]suggested
the compromise that women should seek equality through the courts under the
Fourteenth Amendment (as civil rights activists had done in seeking equality
for blacks). Under an approach like that, the courts would uphold sex-specific
legislation that was good for women and strike out sex-specific legislation
that was bad for women. This compromise helped break the hold-up over the ERA
and also brought together women from all over the country.
Title
VII and Support for a New Era
In 1964, Congress enacted the Civil Rights Act of 1964
which banned race discrimination in many settings including education[13].
Title VII of the same Act eliminated a major barrier to ERA by having gender as
one of the prohibiting bases for adverse employment actions (combined with race,
colour, religion and national origin)[14].
Differences
among Activists
Both approaches of fighting for the ERA and seeking
gender equality under the Fourteenth Amendment were widely accepted in the
1970’s were liberal approaches. They
both sought to maximize women’s choices by giving women rights to be treated
like other people irrespective of gender. Liberal
feminists focused their efforts on social change through the construction
of legislation and regulation of employment practices and stressed on the
similarities (and not the differences) between individual men and women.
Marxist
Feminists expressed that
division of labour was related to gender role expectations where the male was
bourgeoisie and the female was proletariat. An example of such a case is in
that females’ main purpose was to give birth and the male’s sole purpose was to
support the family.
Radical
Feminists spoke out
against all social structures because they are created by men who were believed
to control the norms of acceptable sexual behaviour and used sexism as a main
tool to keep women oppressed.
Social
Feminists believed that
women’s inferior position was the result of class-based capitalism as they
viewed women’s oppression as stemming from their work in the family and the
economy and believed that history could be made in the private sphere (home)
not just the public sphere (work).
Many Radical Feminists were lesbians for the purposes
of being both an identifiable intellectual approach and political strategy.
Dominance
of Liberal Feminism
Liberal Feminism came to dominate understandings of
sexual equality in law and throughout society. This was because of the media’s
representation of radical and socialist feminist as absurd. Liberalism became a
dominant figure in feminism because of its use of widely accepted cultural
norms such as individualism.
Feminists however had a chance to move away from
liberal feminism when the ERA was re-introduced into the Congress[15]
and feminists arranged for congressional hearings that emphasized the limits of
the liberal approach to gender equality embraced by the Supreme Court[16].
In Africa
There was, and
probably still is, a big difference between African and Western women activism.
As the women in the west tried to harvest the fruits of capitalism and global
economy in their fight for gender equality, African women fought against, and
were also confronted with, poverty, terrible labour conditions, faulty
education and health care.
African women’s movement was strongly influenced and
shaped by the activism against colonial rule and racist ideologies[17].
African Feminists have, to a lesser extent, aimed their work of feminism at
personal and sexist conditions which was contrary to Western Feminists.
The Development of a Constitutional Standard
for Sexual Equality
The level of scrutiny (what is this level of
scrutiny?) used to evaluate the constitutionality of gender classifications is
a variation on the standard used in racial cases. Liberal Feminists generally
accepted this standard until the end of the 1970’s after which they began to
question the nature of the standard articulated by the Supreme Court.
i) The First Case
The case of Reed
v. Reed[18]
had the mother in the case being represented by the Women’s Rights Project of
the ACLU[19]
appealing on the decision made by and Idaho court that had the father left as
administrator over their late son’s estate on the basis that the strict
scrutiny standard developed for racial classifications should also apply to
classifications based in gender. The court eventually did not apply strict
scrutiny, provided no explanation about the heightened level of scrutiny it
employed between the two parents and named the parents as joint administrators
of the estate of their deceased son.
ii) Four Votes For Strict Scrutiny
In the case of Fronterio
v. Richardson[20],
was the case of a married female officer of in the Air Force (The plaintiff)
arguing that she was denied equal protection by laws automatically giving
spousal benefits to married men but denying them to married women. The WRP
argued that strict scrutiny standard developed for racial classifications should
apply to classifications based on sex and Four Justices agreed but a majority
of the court could not agree on the standard to be applied.
Eventually, four justices agreed that the Air Force
policy at issue was unconstitutional but applied the Reed Standard rather than adopting strict scrutiny in the light of
the then-pending ERA.
iii) Pregnancy Discrimination
This is majorly brought out in the case of Geduldig v. Aiello[21]
where the opinion of the court was that they did not agree that the exclusion
of pregnancy from coverage [Under California’s Disability Insurance Program]
amounts to invidious discrimination under the Equal Protection Clause.
It can be argued that California’s genuine interest in
fiscal interest could have easily been achieved through a variety of less
drastic, sexually neutral means as was observed in one of their district
courts.
It can also be held that[22] the
California plan at issue was overt discrimination on the basis of sex.
iv) Settling On an Intermediate Standard
The case of Craig
v. Boren[23]
was widely understood as establishing an intermediate standard of review for
legislation classifying by sex: Sex Based Classifications must “serve important
governmental objectives and must be substantially related to the achievement of
these objectives”[24]. Therefore, the standard in cases involving
sex discrimination was proved to be a weakened version of the strict scrutiny
standard applied to racial classifications.
Back
Towards Strict Scrutiny
The case of United
States v. Virginia[25] had the problem of the Virginia
Military Institute (VMI) having received inquiries from 347 women and not
responding to any of them. The District Court recognized that with recruitment,
VMI could “achieve at least 10% female enrolment” which would prove to be a
“sufficient ‘critical mass’ to provide the female cadets with a positive
educational experience.
CONSTIUTIONAL
“EQUALITY”
THE
STANDARD IN ACTION.
The
developed constitutional standard for sex equality is found to be in
functionality in many situations the law undertakes. The cases and statutes
born of the applicability of the standard are numerous. For the purpose of this
writing, the actions of the standard shall be viewed in two scenarios. In the
standard’s applicability in the military, and secondly, in the juries.
Firstly,
in the case of the military, we find two examples of statutes being challenged
on the ground that their effects upon women are disproportionally adverse. The
first of these being in the case of Personnel Administrator of Massachusetts v.
Feeney . This case presented challenge to the constitutionality of the
Massachusetts veterans’ preference statute on the ground that it discriminated
against women in violation of the Equal Protection Clause of the Fourteenth
Amendment.
The
fore-stated statute provides for the consideration of veterans qualifying for
state civil service positions for appointment ahead of any qualifying
non-veterans. It was argued that the absolute preference formula operated to
exclude women from consideration for the best Massachusetts civil service jobs.
The
statute benefits an overwhelming male class mainly because they are the
majority veterans in the military due to there being a number of restrictions
curtailing the number of women joining the United States Armed Forces. In this case, certain elements to be put to
consideration when determining the gender neutrality of statutes where
provided.
These
are that when a statute gender-neutral on its face is challenged on the ground
that its effects upon women are disproportionally adverse, a twofold enquiry is
appropriate. Firstly, whether the statutory classification is indeed neutral in
the sense that it is not gender biased, and secondly, whether the adverse
effect reflects invidious gender based discrimination.
The
statute in this case made the distinction between veteran and non-veterans, not
between men and women. That satisfied the first element for consideration. The
purpose of the statute was also found to be largely for the benefit of the
veterans and not for the purpose of imposing gender instability.
The
second example of a claim of gender discrimination in violation of the
constitution was in the case of Rostker v. Goldberg . In this case, the
Military Selective Service Act (MSSA), gave the president the power to register
only men 18 to 26 years of age. This was gender discriminatory as females could
not register, but it was established that the purpose for registration was
participation in combat. Women as a group are not eligible for combat as is
present in statutes and thus there being found no reason for registration which
led to combat. Thus the purpose for the limitation, though discriminatory, was not
meant to impose invidious gender based discrimination.
Secondly,
in the case of the juries, the question raised was whether the constitutional
decisions banning race-based peremptory challenges should be extended to
sex-based peremptory challenges. It was determined that litigants may not
strike potential jurors solely on the basis of gender. And that intentional
discrimination on the basis of gender by state actors violates the Equal
Protection clause provided for by the constitution of the United States.
In
summary, the developed constitutional standard for sex equality is evidently
still in action.
FEMINIST
LEGAL THEORIES
Introduction
During
the 1970’s, feminist legal scholars tended to assume that the liberal approach
to sexual inequality was the appropriate legal tactic. Feminist theory exploded
in 1980’s, not only in law but in other disciplines as well. In the legal
literature, the first sign of this development was the 1979 publication of
Catharine A. MacKinnon’s first book, Sexual Harassment of Working Women. This
important work included a biting critique of liberal equality doctrine and
argued that inequality could be better understood and redressed under what she
referred to as the dominance theory[26].
Under this approach, MacKinnon emphasized that sex-specific laws do more than
just promote sex role stereotyping or arbitrary differentiation between the
sexes; instead, such laws contribute to the hierarchy of men over women and
permit men to continue to exert power over women. In subsequent work, MacKinnon
operates, in large part by deploying her dominance theory to reveal how gender
and sex hierarchy is constructed and perpetuated through men’s appropriation of
women’s bodies[27].
This
part will cover a brief discussion of consciousness raising the feminist method
that played a large role in reviving the women’s the women’s movement in
beginning in the 1960’s, and a discussion of theories outside of the law that
influenced legal feminists as they extended their analyses beyond formal equality theory.
Some influential
theories outside the law.
Consciousness
raising spurred the development of law feminist theories in multiple
disciplines. Some of them sought to explore the ways women are different than
men. Others proposed more systematic change of societal structures thought to
perpetuate both gender hierarchy and other forms of oppression. We present two
such theories.
CAROL GILLIGAN, IN A
DIFFERENT VOICE: PSYCHOLOGICAL THEORY AND WOMEN’S DEVELOPMENT
In this theory, psychologists had developed,
prior to Gilligan’s work, theoretical frameworks and scales for evaluating
moral development. In this passage, Gilligan critiques Lawrence Kohlberg’s
scale as applied to two adolescents, one a girl and the other a boy, on the
ground that Kohlberg rates as more mature the boy’s approach because it is
based on the “logic” of rules and is hence superior to the more relational
approach of the girl. The thesis of
Gilligan’s book is that psychologists have ignored or undervalued the
relational, caring voice when considering moral problems, preferring a voice
that speaks of abstract rules[28].
ZILLAH EISENSTEIN,
CONSTRUCTING A THEORY OF CAPITALIST PATRIARCHY AND SOCIALIST FEMINISM.
Patriarchy
can be defined as a
social system in which the father is the head of the family and men have
authority over women and children or as a family, community, or society based
on this system or governed by men.
The
importance of socialist feminist strategy, to the extent that it exists is that
it grows out of women’s struggle with their daily existence- production,
reproduction, children, consumption, jobs. The potential for revolutionary
consciousness derives from the fact that women’s lives under capitalist
patriarchy are being squeezed, from the most intimate levels- such as how they
feed their children- to the more public levels of their monotonous, tiring,
low-skill sex-defined, low-wage jobs. Women are working in the labour force and
for less to make do with. This is the base from which consciousness can
develop. We need to try organizing political action and developing political
consciousness about our oppression within the hierarchical sexual division of
society and from understanding of how this connects to the capitalist division
of labour.
FEMINISM LEGAL THEORY
Ø Concerned
with issues that are central to a broader intellectual and political feminist
movement; sex based equality at the workplace, reproductive nights, domestic
violence, sexual harassment, sexual preferences and rape.
Ø Feminist
legal theories emerged against the backdrop of mass political movements like;
defeat of the Equal Rights Amendment, setbacks in abortion rights, same-sex
marriage obstacles and general prevalence of sexism in most walks of life.
Ø Dominant
tendency of FLT; Men are the source of women’s problems.
Ø Male
dominated jurisprudence perpetuates women as objects.
Ø Themes
in feminist legal literature.
1. Women’s
struggle for equality in a male-dominated profession
2. a)
challenging the practicality of every feature of law
b)
Example male legal culture dismisses many problems that women face such as
sexual harassment, sate-rape.
c)
Example for the man, an office pass is sex and pleasurable for the woman, it is
harassment[29]
3. Challenges the law claims to be neutral
to the sexes
Law
defines concepts in a masculine way ignoring the qualities associated with
the experience of women. This is illustrated by the concept of the
“rational person”, a mythical legal object who is coherent, rational acts on his free will and in ordinary
circumstances can be held accountable for his
actions[30].
METHODOLOGY
Ø Feminists
are pragmatists i.e. people who are oriented toward the success or failure of a
particular line of action or thought and rely on feminist legal methods to
advance their cause. The methods include;
1. Asking
the woman question
This
is designed to probe into gender implication over social rule and by doing so
compensating for law’s failure to take into account experiences and values that
are more typical of women than men.
The
woman question shows how the predicament of women reflects the organization of
society rather than the inherent characteristics of women.
The
women question is asked nowadays in cases such as rape; whereby they ask why
the defence of consent deals with the perspective of the defendant and what he
“reasonably” thought the woman wanted rather than the point of view of the
woman and what she “reasonably” thought she conveyed to the defendant.
Example
of this is the trial of Adler 1987(refer to page 36 of feminism and the power
of law).[31]
The
woman question also asks why pregnancy is virtually the only medical condition
excluded from state disability plans and why conflict between family and work
responsibilities is considered a private matter for women to resolve rather
than a public concern involving restructuring of the workplace.
2. Feminist
practical reasoning
These
deals with features not reflected in the legal doctrine that is the assumption
that women approach reasoning differently from men and that women are sensitive
to situation and context and tend to resist universal principles an example
being minors’ access to abortion.
The
young lady is immature and the parents are best suited to decide whether she
will keep or terminate the pregnancy. If they are compelled to keep the
pregnancy then subsequently the will give up the child for adoption which was
contrary to their intentions.
The
minor may also be subjected to parental rejection. Therefore, feminist
practical reasoning challenges the legitimacy of these norms that claim to
speak on behalf of the community.
3. Consciousness-Raising
This
provides the opportunity to test the validity of the legal principles through
personal experiences.
In
these consciousness-raising sessions, women share their experiences publicly as
victims of marital rape, pornography, sexual harassment on the job in an
attempt to alter the public perception of the practices that male culture
consider harmless or flattering.
This
therefore enables feminists to draw insights from their own experiences and
those of other women and uses this newly formed insight to challenge dominant
versions of social reality.
INFLUENTIAL THEORIES IN THE LAW
The
main theory is the Dominance theory which was proposed by Catherine Mackinnon.
From
this theory elements such as liberal equality, sex difference and dominance
come out.[32]
LIBERAL
EQUALITY
It
is believed that understanding women’s conditions it is concluded that women
are damaged. This is because women as a group are dominated by men as a group
and consequently as individuals.[33]
It
was realized that men benefit from certain arrangements like being served and
kept in mind, supported, sexual desires satisfied and their children being
taken care of. This therefore translates to them considering women being
beneath them and that women should not do any other job.
So
through the CR groups, it was discovered that male power was inside a woman
whereby in the woman’s head she was ‘thingified’. Though it is argued that male
power is illusionary it is definitely real. And the solution to this was that
women should confront it wholly and that women are equal to men.
SEX
DIFFERENCES/ DOMINANCE
What
is the gender question?
What
is the inequality question?
These
two questions underlie applications of the equality principle to issues of
gender. Therefore the sex equality approach that has dominated the law,
politics and the social perception is that equality is equivalence not a distinction
but sex is a distinction. Legally, the doctrine treats the likes as likes and
the unlikes unlikes and as for the sexes there’s mutual unlikeness. But upon
scrutiny, paths to equality for women emerge with a dominant approach which is
‘is the same as men’. This path is termed as gender neutrality and is
considered formal equality by social world. However, there’s another route that
of; ‘be different from men’. The difference approach taken by Mackinnon is that
under the sameness standard, we are measured according to our correspondence
with man and our equality judged by our proximity to his measure. Under the
difference standard, we are measured according to our lack of correspondence
with him, our womanhood judged by our distance to his measure. Therefore,
gender neutrality is the male standard.
Think
about the anatomy models back in science, what defines a human body? A- Male
body. Therefore, the situation is that more is less. Approaching sex
discrimination is in a way that sex questions are difference questions and
equality questions are sameness questions and those are ways the law holds
women to a male standard and calls that sex equality.
In
an approach to get equality one must ask the question of distribution of power.
Gender is also a question of power specifically male supremacy and female
subordination. And this approach is what Mackinnon calls the Dominance
approach. The aim of this is to expose that which women had little choice but
were confined to in order to change it. This approach centers on the most
sex-differential abuses of women as a gender which the sex equality couldn’t
confront. The fact that things like rape, prostitution, pornography exclusively
affect women, it does not raise that it is a sex equality issue, since they’re
done uniquely to women and treated as different, a sex difference for that
matter when in fact it is socially situated as subjection to women. The analogy
of women and inferiority as gender is that most things aren’t done to men.
Looking
at the difference and dominance approach clarifies the sex equality
debates whereby the difference approach
adopts the point of view that male supremacy is on the status of sexes hence it
is masculinity, though can be expressed in a female voice.
The
dominance approach sees the inequalities of the social world from the
standpoint of the subordination of women to men, hence feminist.
Schools of feminist thought
Liberal feminism
Liberal
feminism is rooted in the belief that women as well as men are rights bearing
and autonomous human beings .Liberal feminism central core aspects are
rationality, individual choice, equal rights and equal opportunities for women.
Early Liberal feminists include Mary Wollstonecraft (1759 -1799) and Harriet
Taylor. Liberal Feminists of today include Betty fried ran and founders of
National Organization of women, others include Ruth Badder Ginsburg, Wendy
Williams, Hemi Hill Kay, Nadine Taub
The
equality theory that liberal feminists argue for as applied to gender has been
conceptually limited by the similarly situated requirement, if members of the
male society enjoy a right that females want then the only way for females to
obtain this right s under the equal protection doctrine is to argue that as to
the right in question women are similarly situated to men. E.g. if men are paid
Y shillings for a certain task then women should get the same amount of money
as the equality argument states that women are workers just like men.[34]
Case
law Reed v Reed[35]
Criticisms.
Radical
feminists argue that to argue on the basis of women’s similarity to men merely
assimilates women into an unchanged male sphere.
Its
individualist assumptions make it difficult to see the ways in which they argue
that underlying social structures and values disadvantage women even if women
are not dependent on men they are dependent on a patriarchal state
Liberal
feminism as a study allows too much of its forces to fall on a metamorphosis of
women into men hence disregard the traditional role of women
By
focusing on the individual it puts over emphasis on the rational instead of the
emotional state whereas a human is intrinsically both, and in doing so
discredits the importance of a community.[36]
Radical feminism
This type of feminists focus on women as a
class, and particularly a class that is dominated by another class, the male
class
Unlike liberal feminists radical feminism
builds its arguments that focus the differences between men and women, example
of radical feminists include Catherine Mackinnon, Christine Littleton,
Littleton in her model ‘equality as an
acceptance’[37]
argues for a restructured concept of sexual equality and states that to accept
the woman’s difference society should do more than merely accommodate the
difference. It requires the centralization of women in normative debates about
how the world ought to be structured. Consider the current debates over
pregnancy in the workplace if women had participated equally in designing the
workplace from the beginning, employers would not be asked to make
accommodations from pregnancy instead the workplace would be structured so that
the pregnant workers were not viewed as being different from the norm, she
states that only when woman’s difference from man is costless is when we will
have achieved equality as acceptance.
Mackinnon argues that since men have defined
women as different then the equality arguments shall not succeed,[38] she
explains that a question on equality is a question on distribution of power
thus the equality theory only focusses on public spheres for example pregnancy
in the workplace than on the long silenced parts of female experience such as
rape and other forms of sexual assault.
Mackinnon’s camp of feminists argue for
changes in the law that will end the inequality in power because they believe
that sex equality requires protecting women from such things as sexual
harassment, hence they strongly advocated the ban on pornography as it
contributes to women’s sexual subordination by men.[39]
Criticisms
Liberal feminists argue that special
protections for women often leads to inequality, radical feminists see
pornography as male created whereas liberal feminists state that most but not
all pornography is male created and that it is the male created pornography
that defines women as sexual objects however to give the state power to ban
pornography is to give the state power to define acceptable sex and considering
that the current state is male dominated
it will never be able to define acceptable sex in a way that is
consistent with an individual woman’s own definition of her sexual self.
Radical feminism is criticized as generalizing
all women as a class rather than taking into account the many differences among
women thereby it only focuses on how all women are different from men and want
a woman defined ‘woman’[40]
Cultural feminism
This type focuses on a woman’s difference and
embraces it[41], a
cultural feminist Carol Gilligan that women because of their different experiences
spark in a different voice from the men, she identifies this voice with regards
to how a woman is caring, how she deals with relationships, a woman’s moral
vision encompasses this difference voice hence a woman’s difference is good.
Cultural feminists are interested in changing
institutions to give an equal weight to a woman’s moral voice, they argue that
women have not been so much misdefined by men but rather ignored and
undervalued
Criticisms
Mackinnon criticizes the inner voice of the
‘woman’ as she says that this inner voice has after all been constructed in
response to the patriarchy hence the voice is just another voice of the
patriarchy and until women cease to be victims of insubordination then they
cannot speak for themselves.[42]
Postmodern Feminism
This
type eschews around the idea of unitary truth and of objective reality, it
believes in categories and especially the gender categories are social
constructs, these constructs are products of the patriarchy and hence needs
feminist reconstruction. it put emphasis that there is no such thing as the
essential woman or a woman’s point of view, they argue that there is no single
equality theory that that will work for the liberation of women. Postmodern
feminism does not focus on the category ‘woman’ but rather it focuses on the
situated realities of women, plural. It questions earlier feminists attempt to
redefine the category ‘woman’. They state that any definition even one
articulated by feminists is limiting and serves to tie an individual to her identity
as a woman.
Postmodern feminists include Angela Harris,
Judith Baker.
Criticisms
It is argued that it runs the risk of
undercutting the basis of a politics of action based upon gender indifference
through its very anti essentialism.
Simone de Beauvoir argued that male
definitions of the woman shouldn’t hold on that women should define themselves
outside the male dyad; she argued that women must be the subject rather than
the object of analysis.
Marxist Feminism
This type focuses on the social institutions
of private property and capitalism to explain and criticize gender inequality
and oppression,[43]
Marxist feminism states that private property gives rise to Economic
inequality, dependence, political and domestic struggle between the sexes and
it is the root of women’s oppression, a Marxist feminist Friedrich Engels
states that woman’s insubordination is not as a result of her biological
disposition but of social relations and that men’s efforts to achieve their
demands for control of women’s labour and sexual facilities have gradually been
solidified and become institutionalized in the nuclear family.
Criticisms
Radical feminists argue that elements of
modern society (law, religion and politics are all the product of males hence
have a patriarchal character, thus the best solution for women’s oppression
would be to treat patriarchy not as a subset of capitalism but as a problem on
its own, hence eliminating women oppressions would be to eliminate all forms of
male domination
Socialist feminism
This type focuses on the public and private
spheres of a woman’s life, and argues that liberation can only be achieved by
working to end both the economic and cultural sources of women’s oppression[44]
They state that women are unable to be free
because of their financial dependence on men, they further state that women
subject to males in capitalism due to an uneven balance of wealth, they see
economic dependence as the driving force to woman’s subjugation by men.
Criticisms on Feminist Jurisprudence
When the topic of feminist jurisprudence is
brought up, one cannot continue the conversation with at least acknowledging
the very many criticisms on feminism. Through this we will look at a few
theorists and their views on feminism and feminist jurisprudence.
It is said that feminism is an ideology that
opposes the political, economic and cultural regulation of women to positions
of inferiority. Feminism is meant to affirm that men and women are equal. A
feminist theorist known as Mary Wollstonecraft, who is also a firm believer in
women’s rights said, “Women are human beings, we are rational and capable of
self-determination and liberty.” In today’s society that is seen more and more
because of growth of women taking over top positions in society. Shirley Chisholm says that women sadly will
be victims of stereotyping in her statement, “the emotional, sexual,
psychological stereotyping of females begins when the doctor says ‘it’s a
girl’.” This is exactly what women have been fighting to rectify for many
years. Women should be seen as equals to men instead of inferior. Deborah goes
on to define how and why equality is important. She says, “At the substantive
level, it implies a commitment to equality between the sexes. At the
methodological level, it implies a commitment to gender as a focus of concern
and to analytic approaches that reflect women’s concrete experiences.
Underlying these commitments are certain core values of boarder scope.[45]”
This brings us to the question of
jurisprudence and feminism, as we know jurisprudence being the study and theory
of law, should the law develop to protect the ever growing right of equality
between men and women. A similarity one would see in the many different
definitions of feminist jurisprudence and as well as to different feminist
legal theories is that their focus on gender implications of legal rules and
practices (specifically how legal rules and practices affect women and how law
reflects and constructs gender identities), and methods of law, and goal of
transforming both laws’ substance and methods in accordance to feminist goal of
rejection of patriarchy and liberation of women. Mary Jo Frug. Gives instances
on how the law has, over time developed to protect women, she says “Legal rules
permit and sometimes mandate the terrorization
of the female body. This occurs by a combination of provisions that
inadequately protect women against physical abuse and that encourage women to
seek refuge against insecurity….Legal rules permit and sometimes mandate the maternalization of the female body. This
occurs by provisions that reward women for singularly assuming responsibilities
after childbirth and with those that penalize conduct-such as sexuality or
labor market work-that conflicts with mothering…Legal rules permit and sometimes
mandate the sexualization of the
female body. This occurs through provisions that criminalize individual sexual
conduct, such as rules against commercial sex (prostitution) or same-sex
practices (homosexuality)” [46]
In
Robin West’s article Jurisprudence and
Gender, which is said to be an interesting view on modern feminist
jurisprudence[47],
claimed that all of modern jurisprudence was ‘masculine’, because it was based
on the belief that individual was first and foremost materially separate and
apart from individuals, which, she claimed was not true for women who were
materially connected to other individuals, through critical experiences,
notably pregnancy and heterosexual penetration. This is also seen in the
doctrine of covertures, where the wife sought to be completely covered by the
husband. They become one under the law and the law only acknowledged the
husband in the marriage. Catherine MacKinnon goes on to explain how law has
defended the supposed dominance factor when it comes to society. She says
‘Concealed is the substantive way in which man has become the measure of all
things. Under the sameness standard, women are measured according to our
correspondence with man, our equality judged by our proximity to his measure.
Under the difference standard, we are measured according to our lack of
correspondence with him, our womanhood judged by our distance from his
measure…”[48].
One thing all these theorists and critiques
have in common is that there needs to be a mutual understanding in society that
women and men are more equal then we have been lead to believe over time.
Because of this we need to develop new norms and get rid of the idea that one
is above the other but that everyone is able to make their own judgments and
decisions as a competent human being. The law should also protect that. That is
when equality we be seen as what it really is.
AFRICAN FEMINISM
Firstly, it is important to say that when it comes to theory, it’s
more accurate to speak of African feminisms than of one almighty African
feminism. Not all African feminists agree with each other–luckily, I’d add, as
this would hinder deep reflection of issues such as those listed below–yet
respecting differences whilst recognizing a common ground is a priority. As I
mentioned in the previous post, many women might refer to themselves as both
African feminists and Black feminists. However, African feminist thought has an
added commitment to analyses in African contexts.
African feminists refers to feminists of African heritage both in
Africa and in the Diaspora.‘African women’ refers to women of African heritage who are rural,
urban and of all social classes who live in Africa and across the globe.
African woman face enormous challenges of economic and structural
adjustment and we realized that our work needed to underscore women’s unique
responses to these multiple crises[49]. Most of these problems
that African women face are gender-political crises that arose as a result
Africa economic ties with the west where African men were given increased
recognition relative to women.
Women have experienced marginalization in the capitalist oriented
world. Political leaders who have attempted further to to solve the crises
partially have further limited and exploited women; this is to be seen when
women are beaten and their market burned.
The origin of African feminism can be traced back to cultural models
of African societies. In corporate cultural model the individual are part of
many interdependent human relationships. The main role of this model is to
maintain wellbeing of the group rather than the individual. Women had
opportunities but experienced social pull from their domestic and public roles
in the economy, religious realms, and social life. In a dual sex cultural model
in addition to participating in a linkage
or clan basis, women could participate as members of occupational and ritual
organization. There was also male dominance in this kind of model. Dual sex and
corporate created a façade of egalitarian by allowing women a voice in public
decision making.
Patriarchy
Africa is no different to other continents in the world, where
whatever autonomic space the society offers the individual, it is less if one
is female. Unfortunately we don’t know of a time in modern history when women
of a racial/ethnic/class group were not disadvantaged in comparison to men of
the same racial/ethnic/class group. We know of times (including this current
one) when women of one race, ethnicity and/or class may have social advantages
over men of another race, ethnicity and/or class. African feminists pay
attention to the ways that patriarchy–a psychological and political system that
values the male higher than the female–uses law, tradition, force, ritual,
customs, education, language, labour (etc.) to keep women governed by men in
both public and private life. African feminism sees that African men and women
could have mutually beneficial, transformative and progressive relationships in
the private and public spheres if our relationships were non-patriarchal and
egalitarian. Nevertheless, African feminists assume responsibility for striving
for such equal societies rather than hoping that men will someday redistribute
privilege and power to create a better, more harmonious prospect for future
generations.
Race
African feminist thought does not solely deal with the
“male-female”-imbalance because that would leave out other factors that affect
African women’s lives, one of which is racial hierarchies and the
socio-politics that come along with them. In fact, African feminists tend to be
well-versed in how racial politics has undermined those practices in parts of
historical Africa that had complementary elements and that nurtured a spirit of
mutual intimacy. African feminist writing aims to ‘undo’ the roles and
conditions that made Africans dependent on their colonizers, to ‘unwrite’ the
burden of a history of imperialism that spans through centuries and to give a
new language with which African women and men can progress from the racialized
trauma that till this present day affects women and men, albeit in different
ways.
Tradition
It’s quite unpopular to criticize African traditions, or to point out that
African history is marked by male dominance which African women have always
resisted. Whether it is to do with the household, marriage customs, production
methods or sexual freedoms, African patriarchal traditions for the most part
make distinctions between male and female in ways that disadvantage the female.
African women have been silenced for too long about the crimes of traditional
patriarchy such as the abusive and dehumanising institution of patriarchal
polygamy, widow abuse, genital cutting, witch-hunting and women’s lack of
access to property and power in traditional society. That said, African
feminist thought doesn’t seek to abandon tradition, as tradition also harbours
a precious cultural memory and a rich legacy of knowledge and spirituality.
Rather the goal is to enable tradition to adapt to its times so that rather
than stagnate, it can enrich society, as customs and culture should do. Take
for instance Sisonke Msimang, a well-known African feminist who here describes
incorporating the lobola (bride price) in her wedding ceremony in a completely
feminist way! That’s a great example of how to maintain cultural pride whilst
simultaneously preserving a commitment to evolution and harmony.
Underdevelopment
Africa, according to statistical indices, is the poorest continent in
terms of people’s access to basic amenities. African feminist thought honours
that poverty in Africa and wealth in the west are structurally linked. The
west’s continued injustice towards Africa through military intervention,
resource exploitation, NGO propaganda, unjustifiable debt and trade practices,
and other neo/colonial practices of the power hungry has devastating effects on
African states ability to cope with such factors as HIV/Aids, women’s sexual
& maternal health and infrastructure development. Perhaps worst of all, is
that the underdevelopment of Africa has impeded on the development of
consciousness through adequate educational systems. As a result, African
societies have been unable to naturally progress in ways where their
jurisdiction, agriculture, intra-continental trade, indigenous healthcare and
philosophical outlook has advanced to match the needs of citizens. In addition,
this lack of consciousness development fuels unexamined claims like that the
pursuit of gender equality is unAfrican or that homosexuality is sinful.
Furthermore, poverty affects women worse than men in developing parts of the
world because as Thomas Sankara said, “…women are dependant of the dependant.”
African feminism seeks to enlighten that in order to develop African countries
need to create social institutions that will resist foreign hegemony over
African people, encourage engaged thinking and a workforce inclusive of all of
its population on equally focused footing.
Sexuality
To point out the obvious, lesbians are women and homophobia and the
persecution of African queer women by African states is a key issue in African
feminist thought.[50] The
question of female sexuality in all its manifestations, and the control and
suppression thereof, is in fact a central preoccupation for African
feminists. How do we challenge the state
that pushes a rigid heterosexist idea as the norm? How do we unlink sexual
dominance from sexual pleasure? How are women’s bodies made to bear the wounds
of history; and of foreign intrusion and prolonged national struggles? How do we address the psychological and
physical suffering that women endure after violation? African feminist-centered
thought and activism aims to query into and dismantle the mindset that doesn’t
encourage the fundamental human right of ownership over ones body.
Global feminism
For feminism to be far reaching in impact, African feminists, like all
others involved in the women’s movement need to collaborate with each other as
we are also co-dependent in an increasingly inter-connected world. In the 20th
century, African feminists were largely engaged in eliminating the arrogance
and imperialism that had been imported through white-western feminism into
African women’s narratives, but in the past decade or so the focus has been on
ways to work together despite differences and especially to strengthen ties
with Latin American and Asian feminist struggles. This pattern is in varying
degrees the zeitgeist of all global feminisms, even though theory and practice
are not always in unison.
African feminists need to curb (not neglect) their anger towards the
negative images that many white feminists have perpetuated and focus on the
resourceful work that many white feminists have produced, and white feminists
need to be starkly aware and critical of their privileged position.Only then
can we mutually seek to empower the strength at the heart of womanhood.
Love
Love is something that all human beings desire in life yet it is an
undervalued emotion in the worldview that shapes much of modern ideas. Using
art in all its forms, for instance, to infuse theory with passion and emotion
is for many African feminists a radically transformative act. Art is a realm
where African feminist positions are not stated, but are symbolically
represented. By creating new intellectual traditions aside of white/male
academic history, African feminists are
in effect questioning the legitimacy of
knowledge production and decolonizing and depatriarchalizing minds.
African feminist thought is fuelled by the idea that love and justice
are complementary to revolution and change.[51] It is focused on healing,
reconciliation, and on an insistence that the language of African womanhood,
from its global position, is the language that can transform society into one
where sexual, racial, spiritual, psychological and social equality are
afforded. In such a society people can pursue lives with less daily micro- and
macro-aggressions, less hostility and more space for self-realization. From Miriam
Makeba’s music to Oumou Sy’s fashion to Nike Ogundaike’s art, African feminists
are at the forefront of using creativity to express that progressive thought is
not only cerebral but also visceral and expressive.
[1]
Feminist Jurisprudence pp 2
[2]
Feminist Jurisprudence p 6-7
[3]
Ibid p 3
[4]
Ibid
[5]
Feminist Jurisprudence p 8
[6]
Ibid p 11
[7] It
is the rule of men as a social group over women as a social group in a system
of gender hierarchy.
[8]
Carol Smart, Feminism And The Power of
Law, pg. 66
[9]
Find feminist theories of law reform.
[10]
Nancy F. Cott, The Grounding of Modern
Feminism,115-42 (1987)
[11]
Laws of New York
[12]
Pauli Murray, The Autobiography of A Black Activist, Feminist Lawyer, Priest
and Poet (1987)
[13]
Title IX of Civil Rights Act of the USA (1964)
[14]
Feminist Jurisprudence Book you are using
[15]
In 1983
[16]
Feminist Juris. Book u are using
[17]
Feminism In Africa
[18]
404, U.S. 71 (1971)
[19]
Full form of ACLU
[20]
411, U.S. 677 (1973)
[21]
417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed. 2d 256
[22]
As stated by Appellee’s Brief in Geduldig v. Aiello; No. 73-640 at 24-25 (Oct.
Term 1973)
[23]
429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397
[24]
From Female Juris. Book u are using
[25]
518 U.S. 515, 116 S.Ct. 2264, 135 L.Ed.2d 735.
[26]
Sexual Harassment Of Working Women, Catharine A. MacKinnon
[27]
Feminist Jurisprudence, Cynthia Grant Bowman, Laura A. Rosenbury, Deborah
Tuerkheimer & Kimberly A. Yuracko,
Fourth Edition.
[28]
Feminist Jurisprudence, Cynthia Grant Bowman, Laura A. Rosenbury, Deborah
Tuerkheimer & Kimberly A. Yuracko,
Fourth Edition.
[29]
Law and Society, Steven Vago, page 66
[30]
ibid
[31]
Feminism and the Power of Law, Carol Smart, page 36
[32]
Feminist Jurisprudence, Cynthia Grant
Bowman
[34]
Patricia A Cain
[35] 404
U.S. 71 (1971),
[36] http://www.sociology.org.uk/as4i4c4a.pdf
[37] http://citation.allacademic.com/meta/p_mla_apa_research_citation/0/8/5/5/3/pages85530/p85530-15.php
[38] Toward
a Feminist Theory of the State. By Catharine A. MacKinnon.
[39] A
. D freeman, Introduction to jurisprudence
[40]
ibid
[41] http://www.sascwr.org/files/www/resources_pdfs/feminism/Definitions_of_Branches_of_Feminisn.pdf
[42]
ibid
[43] www.feministissues.com/marxist.html
[44] womenshistory.about.com
› ... › Feminism › Types of Feminism
[45] Deborah L. Rhode, The “No Problem” Problem: Challenges and
Cultural Change, 100 Yale L. J. 1731, 1735-6 (1991).
[46] Mary Jo Frug, Postmodern Legal Feminism, New York:
Routlage (1992), pp. 129-130
[47] Robin West, (Jurisprudence and
Gender), 55 U. Chi. L. Rev 1 (1988).
[48] Catherine
A. MacKinnon, (‘Difference and Dominance: On Sex discrimination’ in: Feminism Unmodified: Discourse on Life and
Law, Cambridge: Harvard University Press,) pp. 32-36, at 33.
[49]
Gwendolyn mikell. African Feminism. The
politics of Survival Sub-saharan Africa.(2011 ed)
[50]
Boulder , Colo. Feminist Thought: A Comprehensive Iintroduction.
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