18 Jul 2022

196

Feminism and its Impact on the Law

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Academic level: College

Paper type: Term Paper

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That the feminist movement has enjoyed remarkable successes in the last five decades is axiomatic. Today, many celebrities, politicians and other influential figures have succumbed to the consciousness ignited by the feminist movement under the MeToo Movement. The dignity and freedoms of women are no longer concepts confined to the academy. They have increasingly found their way into real life. Legal theory and practice are one of the areas thoroughly impacted by the ascendancy of feminism. However, the novel and subtle ways in which this has happened is often imperceptible to the common eye. This paper explores these subtleties and nuances with the view of teasing out the far-reaching impacts feminism for legal theorizing and practice as well as for political perceptions. 

It is important to underscore from the outset that feminism has numerous strands. Feminists disagree on a wide variety of issues regarding method and substance (Thornton, 1998) . Nonetheless, it is beyond dispute that the fundamental concern of feminists is that lives of women and girls ought not to be determined only on the basis of gender; that they should be able to exercise a degree of choice in matters affecting them and that they are entitled to dignity like other human beings (Thornton, 1998). Consequently, the feminist movement is a reformist movement that seeks to ensure women enjoy better fortunes in all spheres of life (Chamallas & Wriggins, 2010) . Academic feminism, informed by practice, is concerned with critiquing gendered constructions of knowledge that have served to undermine the vision of a free woman. In other words, academic feminism seeks to debunk masculinist knowledge that has for years been portrayed as true and universal. A key question posed here is how any knowledge can claim to be true and universal while ignoring the vital perspectives of women (McKinnon, 2016) . In this endeavor, feminism at the academic and practical level have informed and shaped each other. Any assessment of the effects of feminism on the law must, therefore, pay attention to both levels. 

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Legal philosophy, the bedrock of legal interpretation, has thoroughly been shaped by feminist theory leading to the emergence of what some scholars have termed feminist jurisprudence. The result of incorporating feminist thought into jurisprudence has been far-reaching with conventional approaches being challenged. Legal systems by their very nature reflect long-standing conceptual systems that they aspire to keep intact and coherent. This leads to the idea of precedents. While precedents may be challenged, there is generally a reluctance to change them, and they remain a strong indicator of judicial impartiality (Bowman & Schneider, 1998) . Feminist thinkers , however, seek to overturn conceptualization of the rule of law in such terms arguing that it legitimates and reinforces the status quo. In doing so, feminism questions one of the main purposes of the law as traditionally conceived. 

The law seeks to promote order and stability through reinforcement of predominant norms, casting them not just as standard values but also as universal and inevitable (Bowman & Schneider, 1998) . Injustices, wrongs, infringements, and infractions are generally deviations from the law, as set by the status quo. The law, owing to its force, is often represented as the objective standard-supported not just by interpretation but also precedent. To this end, the law can be a powerful tool for the maintenance of the status quo. Feminist legal philosophy, grounded in the historical bias that has afflicted women, rejects this approach to the law and seeks to draw attention to the biases embedded in it (Thornton, 1998) . Specifically, feminist legal thinkers reject patriarchal systems especia lly as contained in precedents in the name of jurisprudence. They, therefore, advocate a shift in legal interpretation approaches so that the law ceases to be an institution for perpetuating gender inequality just like other prevailing economic, political, and education arrangements. 

The immediate causality of this feminist critique has been customary law as feminists have combed through customary law precepts for any hint of gender inequality. In many parts of the world, this has meant reform of inheritance laws and widowhood rights (Chegwe, 2013) . Many courts have made a finding that particular customs do not meet the gender equality threshold set out in constitutional documents and regional frameworks (Chegwe, 2013) . This cause has been supported most forcefully by liberal feminists who are deeply concerned about procedural equality between men and women. 

The clamor for equality, procedural or otherwise, has, however, raised serious contestations amongst feminist thinkers and legal practitioners. While it is true that the law ought to apply equally for both genders (McKinnon, 2016) , it is irrefutable that exists key differences between men and women, which any reasonable interpretation of the law would take into account. For centuries, men and women have always been perceived as being different and, therefore, justified to treat them differently. For instance, there are biological differences like those of pregnancy and birth. Men also tend to be stronger and taller than women while it is accepted that women have longer life expectancies. How these differences feature in law interpretation, therefore, remains contentious. While some feminists concede that the law must take into account these differences (Thornton, 1998) , they note they have been exaggerated to undermine women and their interests (McKinnon, 2016) . To this extent, they point out that women are more likely to earn less than men, be relegated to menial household chores , and face numerous other forms of discrimination at home and work. 

The difference dilemma that once permeated feminist discourse has as a consequence of the feminist movement found its way into the law. Many courts are, therefore, increasingly contending with questions like pregnancy leave including the proper duration of maternity leave, the benefits, and employee-employer relations in such instances (Dempsey, 2010) . The difficulty for the courts is especially poignant in instances where the legal framework governing such issues is still under-developed. 

The reasonable standard, which plays a key role in law is yet another area thoroughly impacted by feminist thinking. The reasonable standard addresses a vast array of issues such as what is fair dealing in commercial contracts, if reasonable care was exercised (tort law) and whether a person had a genuine basis to believe harm was going to be committed in matters of criminal law (Chamallas & Wriggins, 2010) . The traditional standard has always been that of average reasonable man, suggesting the gendered character of such formulations. It suggests that women have no capacity for reasonableness. While shifts have occurred leading to the standard being formulated as that of ‘reasonable person’, feminist legal thinkers are still concerned that this standard contains patriarchal norms. Interaction with the police is one of the areas commonly cited as evidence of this fact (Thornton, 1998) . Feminists join disability groups and Black Lives Matter Movements to reveal how what is deemed reasonable is heavily biased. The reasonable woman or black man is in reality, not the reasonable legal standard. To this extent, feminist decry the superficial altering of phraseology without addressing the underlying forms of gender balance in the reasonable standard (Chamallas & Wriggins, 2010) . 

Some thinkers sensitive to the plight of women under the law have suggested that what is necessary is the development of an alternative standard of an average reasonable woman. After all, it is argued, such as standard would be cognizant of the dichotomies between men and women (McKinnon, 2016) . A separate legal standard would , however, face enormous practical challenges and lead to the likelihood of unfairness. The more potent danger would be that of fragmentation of the law into different subjective areas. Given the aforementioned difference dilemma, some thinkers are persuaded this fragmentation is the right course of action. Others, however, think such fragmentation is needless since it is possible to reform the reasonable standard by delegitimizing masculinist forms embedded in it (Chamallas & Wriggins, 2010) . In brief, feminist thinkers seek to reassess areas of law like contract and tort that continue to reflect a bias in the claims they recognize, the compensation they offer, and the in their interpretation of injury. 

The distinction between the public and private realm is another area whose viability has been challenged by the feminist perspective. For many feminists especially in the liberal tradition, private life is a domain that ought to be left to individual choice. More radical feminists have, however, questioned the viability of this distinction pointing out that patriarchy within private relationships has significant spillovers on the public domain and, therefore, it is impossible to draw a neat line between actions that affect the individual and those that affect others (Thornton, 1998) . Feminist legal thinkers , therefore, see huge problems with legal structures that reinforce or allow male dominance in private domains such as intimate relationships and therefore seek their overthrow. A perfect example here is the issue of prostitution. To the liberal feminist, this is a private matter that ought to be based on voluntary choice without mediation by the state. To this extent, the role of the law is seen as prohibiting coercive tendencies by the state under the guise of doing public good (Thornton, 1998) . Other feminists, however, reject this reading and submit that allowing prostitution legally has consequences beyond the individual such as permitting sex trafficking (Dempsey, 2010) . They further reject the idea of prostitution as being born out of voluntary choice since paid sex is by and large a product of financial deprivation. The result of this discourse has been the formulation of a vastly different set of laws in different jurisdictions not just prostitution but also other issues like domestic violence, work arrangements and family structures. 

Thanks to agitation by feminists and other activists, the world has in the past seven decades witnessed the adoption of a rather progressive human rights regime. The United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is one key legal frameworks seeking equality of all genders (Chegwe, 2013) . Many feminists have welcomed these development s as the representation of a post-patriarchal society within the international legal regime. Other feminists are however concerned that these legal remedies are unlikely to yield fruits given that conformity to human rights regimes by state actors remains shallow (McKinnon, 2016) . They , therefore, recommend that attention should be concentrated on the enactment of similar laws at the national level to provide succor to international legal instruments. This partly explains the proliferation of such laws in many countries in the past two decades. 

However, not all feminists agree with the idea of adopting rights. Most feminist within the critical legal studies school decry rights for masking underlying relationships of domination. Thus while rights may offer protections to would-be victims, they do little to resolve the underlying causes of these injustices (Thornton, 1998) . Third world feminists have been especially forceful in rejecting the structural bias embedded in international law. Thanks to these conversations, there is now a renewed conversation on how international law can take into account these concerns and how enforcement can be enhanced. 

The interactions between feminism and the concept of citizenship have been significant. The second wave feminism ushered in equal citizenship that is often taken for granted today. Women, just like men, are free and equal members of a political system and as such have a right to vote, vie or pursue any other political ambition. But nearly a century after women suffrage was attained in the United States, feminist thinkers are still concerned that substantive, as opposed to formal, political equality remains a pressing issue. In many cultures including the United States, feminist thinkers observe, women are still grossly underrepresented in political (Maillé, 2015) . This is indeed a fair critique that has attracted considerable commentary and raised public consciousness in recent years. 

In 2014, only 18.5% of seats in Congress were held by women, 18.2% in the House of Representatives and 20.0% in the Senate. Generally, the United States has performed poorly in rankings of women in parliaments according to the Inter-Parliamentary Union (Maillé, 2015) . While Hillary Clinton was only a front-runner in the Democratic Primary in 2016, countries like Brazil, Germany, and Argentina have female leaders in their highest offices. However, not many American peers have performed better at the parliamentary level. Canada’s house of commons has only 25.1% of seats occupied by women and has generally stagnated between 20% and 25% for the last two decades (Maillé, 2015) . The result, feminists argue, is that women have no voice on issues sensitive to them such as reproductive health (McKinnon, 2016) . Decisions end up being by a majority of people with no first-hand experience of women’s challenges. There has thus been a clamor to raise public consciousness on this issue and, therefore, institute reform. Two routes have proven especially expedient: the imposition of quotas and adoption of training programs. 

Electoral quotas have in recent years emerged as an important reform sought by feminists and other activists to achieve gender parity in representation. Legal quotas, party quotas and soft quotas have been the most popular (Maillé, 2015) . Party quotas are adopted by individual political parties to increase women representation in the party and national legislatures. Legal quotas , by contrast, are laws formulated to constrain electoral processes and therefore ensure a particular threshold of either gender emerges from the political contest. Soft quotas are the measures, other than party and legal measures, that are instituted to increase women representation. There are nearly fifty countries that have adopted legal quotas as a means of increasing women numbers in representative positions, a major victory for feminist activists (Maillé, 2015) . 

The United States has, however, been hesitant to adopt legal quotas. Generally, quotas are considered un-American given the pervasiveness of liberal democratic principles in the country (Maillé, 2015) . In a nutshell, it is believed that no one should get something on a silver platter by virtue of being a man or a woman. This argument, postmodern feminists argue, is far from convincing given the pervasiveness of affirmative action in the same country and its recorded success (Chamallas & Wriggins, 2010) . To this end, they point to the potential of legal and party quotas to jump start and make major leaps in the number of women representatives. However, upon recognizing the limitations of this approach, many women’s movements and feminists have resorted to training and mobilizing women to participate in politics (Maillé, 2015) . Women are introduced to the world of politics, informed on its challenges , and subsequently mentored. The recent improvement in the number of women representatives, especially from minority groups, in the recently concluded mid-terms is indicative of these partly feminist efforts bearing fruits. 

Conclusion 

The impact of feminism on the law and perception towards women in politics has been quite profound. Traditional legal standards including on reasonableness and rule law have been brought into sharper focus and consequently debunked. A similar phenomenon has been witnessed in human rights conception and interpretation as the customary law has increasingly failed to withstand the feminist threshold. In short, the paper has demonstrated the impact of feminist legal philosophy on both legal theory and practice with a glimpse of the consequences for public perceptions of women in politics. 

References 

Bowman, C. G., & Schneider, E. M. (1998). Feminist Legal Theory, Feminist Lawmaking, and the Legal Profession. Fordham Law Review , https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3504&context=flr. 

Chamallas, M., & Wriggins, J. (2010). The Measure of Injury: Race, Gender, and Tort Law. New York University: New York University Press. 

Chegwe, E. (2013). A gender critique of liberal feminism and its impact on Nigerian law. International Journal of Discrimination and the Law, 14 (1). 

Dempsey, M. (2010). Sex Trafficking and Criminalization: In Defense of Feminist Abolitionism. University of Pennsylvania Law Review , 1729-1778. 

Maillé, C. (2015). Feminist Interventions in Political Representation in the United States and Canada: Training Programs and Legal Quotas. European Journal of American Studies , https://journals.openedition.org/ejas/10502. 

McKinnon, R. (2016). Epistemic Injustice. Philosophy Compass , 437-446. 

Thornton, M. (1998). The Development of Feminist Jurisprudence. Legal Education Review , http://classic.austlii.edu.au/au/journals/LegEdRev/1998/8.html. 

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