CIA-3

JURISPRUDENCE
Feminist Legal Theory: A Brief Understanding

SUBMITTED TO: SUBMITTED BY:

Mr. Nideesh Kumar Sakshi Jain

1750564

4 BBA LLB (B)

 Feminist legal theory
Feminist jurisprudence seeks to comprehensively portray the ways in which the law played a
role in women's former subordinate status. Further, feminist legal theory is mostly dedicated
to changing women's status through a rework of the law and its approach to gender. There are
two basic positions that all feminists stick to : first, that society shaped and dominated by men
and is therefore patriarchal; and second, that society subordinates women to men.

Judges all over the world have historically banked on the assumptions about gender that
reflected and reinforced patriarchal values in legal decision making, which rightly, feminists
claim have justified legal forms of gender inequality.

The legal exclusion of women from the public sphere of society has been justified with the
assumptions about women's roles, in particular the primary responsibility of women for
bearing and rearing children. These assumptions denied women many important political and
economic opportunities. For instance, at early common law, married women were denied the
right to own or convey property, to retain their own wages, enter contracts, or initiate legal
claims.

By challenging such restrictions, and the legal assumptions that reinforced gender inequality,
advocates of women’s rights laid the foundation for the legal feminist movement. Legal
feminists argue that law and culture, not nature, have put women in a "private sphere" of
domesticity, making women economically dependent on men.

The early focus of such work was to give greater recognition to the cause of women's rights:
to expand reproductive freedom, to eliminate sex-based discrimination in employment,
education, family, and other contexts, and to deter sexual abuse generally. In doing so,
women's rights advocates developed feminist legal theories to "challenge unequal l
opportunities the ideology that had legitimated them."

Feminist legal theory is diverse, and not monolithic. Many feminist believe that it is difficult
to generalize about feminist jurisprudence. It is, however, possible to understand feminist
legal theory as a reaction to the jurisprudence of modern legal scholars (primarily male
scholars) who tend to see law as a process for interpreting and perpetuating a universal ,
gender-neutral public morality. Feminist legal scholars, despite their differences, appear
united in claiming that "masculine" jurisprudence of "all stripes" fails to acknowledge, let
alone respond to, the interests, values, fears, and harms experienced by women.

The jurisprudence o f this movement is unique to the law—it challenges traditional attitudes
and beliefs about gender, which are said to be basic to professional legal discourse. Yet
feminists are deeply dividing by sharp differences in method, approach, and perspective.
There are two main theories that led to the evolution of the Feminist legal theory: first, being
Equal treatment theory and the second, Difference theory.

Equal treatment theory is based on the principle of formal equality that inspired the suffrage
movement, namely, that women are entitled to the same rights as men. The theory drew from
liberal ideals in philosophy and political theory that endorse equal citizenship, equal
opportunities in the public arena, individualism, and rationality. The equal treatment
principles were simple the law should not treat a woman differently from a similarly situated
man. Efforts to attain equal treatment for women pursued two goals. The first was to obtain
equivalent social and political opportunities, such as equal wages, equal employment and
equal access to government benefits. The second was to do away with legislation intended to
protect women by isolating them from the public sphere. Equal treatment theory stressed the
ways women were similar to men, and used this as the platform for claiming equal
employment and economic benefits.

Cultural feminism which is also called “difference theory” argues that formal equality does
not always result in substantive equality. Purely formal equality of opportunity did not lead to
equality of results. People judged women harshly on the basis of their inability to conform to
the male norm. Gender- neutral laws can keep women down if they do not acknowledge
women’s different experiences and perspectives. This theory emphasizes the differences
between men and women, whether the differences in question are biological differences
related to childbearing or cultural differences reflected in social relationships. Cultural
feminists note that many institutions follow rules based heavily on male-dominated
experiences which can disadvantage women. Advocates of this theory urged a model that
focuses on differences between the sexes, where rooted in culture or biology; differences in
reproductive functions, caretaking responsibilities, and even emotions and perceptions such
as the way women perceive rape, sexual harassment, and various aspects of reproduction.
Cultural feminism does more than identify women’s differences, it applauds them.

There are multiple theories that deal with the feminist angle of jurisprudence. This diversity
of feminist approaches to law reflects both a complexity in feminist thought and the
multidimensionality of its engagement with law. As feminist critique has evolved and
matured, so has its appreciation for the particular obstacles which law poses. The challenge
which remains is the struggle to make law, legal method, and legal studies more gender
sensitive without becoming complacent in assuming what that might entail.