Gender Justice & Property Rights

Course 🙏 Personal Laws II

Faculty Mr. Owais Hasan Khan

Gender Justice & Property Rights (PPT), The Second Sex (Simone De Beauvoir ), The Cinderella Complex
(Colette Dowling), Sexuality and the Law (Vanessa Munro), Origin of the Family, Private Property, and the
State (Friedrich Engels), Feminisms (Sandra Kemp (ed.), Judith Squires), Family Law (Jonathan Herring),
Resources Law and Gender Inequality The Politics of Womens Rights in India (Flavia Agnes), Family Law (Flavia
Agnes), An Introduction to Simone de Beauvoir's The Second Sex- A Macat Literature Analysis, Gender
Equality: Now

Status Class Notes Only

Topic
2
No

The Origin of the Family, Private Property and the State

(Frederick Engels, 1884) - Anthropological study of family
economics & state.
Inspired by:
Karl Marx & Lewis H. Morgan's research, 'Ancient Society; or, Researches in the Lines of Human Progress from Savagery,
Through Barbarism to Civilization (1877)' . Engels & Marx were contemporaries to each other & inspired each other, thus
Engels work has a touch of leftist ideology.

Subject-matter of study:
The Native American tribe Seneca Iroquois.

Findings:

Matrilineal Descent Matrilocal Residence

In most societies Patrilineal descent is
considered the norm (inherit father's title).
BUT this tribe follows Matrilineal descent
- Inherit mother's title and property.
Husband comes to live in the wife's home;
In some clans husband brings home young wife until brave enough
to leave mother - Usually females ruled the house.
Stores held in common

Husband can be forced to leave house at anytime - irrespective of

children/property - unwise to stay-back unless supported by aunt or
granny.

Women had great power - nominated male chiefs themselves - could

demote him to warrior rank if needed.

💡 Family Economics: he concluded that whoever controlled the means of production, headed or controlled the
family - This was applicable at both family and societal levels.

Engels Criticisms of Society Significance of Study

1. Materialistic conception of history
2. Materialistic explanation of life worth: In society
one's life worth is judged by his wealth, status, job,
The findings of Engels study breaks the metanarrative
that it is God/Nature's will to have men as breadwinners
and women as child-bearers & homemakers. The Seneca

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 etc - Ref. to Simone de Beauvoir; a man who goes out
and works with dead machines everyday is considered
more important than a woman who takes care of the
child, which is the future of humanity - reason:
industrial labour has immediate returns (day/month-
end salary) whereas child-rearing doesn't.
Iroquois tribe is evidence that gender roles are not fixed
and can be reversed.
Feminism & Gender Equality. Why 2 different
nomenclature?
Both feminism & gender equality strive for equality
b/w. men & women - However, Feminism goes a step
ahead and calls for affirmative action in favour of
women (e.g. reservation).

Mother Right: An investigation of the religious and juridical

character of matriarchy in the Ancient World (Johann Jakob
Bachofen, 1992)
JJ Bachofen hypothesized in his book Myth, Religion and Mother Right that the reason why an originally matriarchal
society turned into a patriarchal one was the emergence of private property, broadly speaking.

He observed:
Originally humanity was in a state of sexual promiscuity (hetaerism) - multiple sexual partners for men & women.

As a result of such promiscuity, on conception - it was impossible to know for certain the father - thus descent could
only be established along maternal lines.

Since women, as mothers were the only known parents of the younger generation - held position of high respect &
honour - child inherit mother's title & inheritance.

The Switch
The transition Originally in ancient society property & resources was held commonly (no concept of Pvt.
from matriarchy property) - BUT with shift from hunters/gathers (nomads) to agriculturalists (settlers) -
to patriarchy individuals toil in a land & thus expect to own the fruits of such labour (privately own) - so men
took place as a worked the lands & women took care of children - now men realized that there was a need for
result of someone to inherit their land (private property) - thus emerged the need for man to recognize his
monogamy own children - forcing women to sexual exclusivity - now children inherited the title and
which in turn property of the father. Thus took place the shift from matriarchy to patriarchy.
was a result of
the emergence
of private
property

Gender Equality: Now video

Transition of Society and Origin of Family

Engels in his work talks about family, private property & state - for understanding the transition of society & origin of
family it is sufficient to study only family and private property - The core of his left-inclined ideology is that the
accumulation of private property in the hands of few leads to inequalities in society - those in possession of such surplus
control society.

Primate Societies (Savagery) Hunters & Class Society (Civilization)

They had a social structure (NOT Gatherers Agricultural society (settlement) -
referring to biological structure) (Barbarism) Industrial Revolution - origin of private
resembling that of Apes. Pre-agricultural property.
phase
Division of Labour on the basis of Over time this agricultural society
gender - female: prolonged child Nomadic in nature - transformed into a class society - one class
care & male: defence - one of the moved from place to control the means of production, thus
main reasons for such gender place in search of dictate its use by others & expropriate the
roles is the biological exclusivity food (plants & surplus.
of females to give birth to a child. animals), natural

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 General Equality prevails & both resources and/or to Gender Equality: men had absolute control
sexes have equal respect & honor escape harsh of property & surplus - women became the
- although men-women conditions. second sex.
performed certain gender roles -
Simple technology Apart from not being part of the industrial
both had equality in decision production process women also didn't have
for hunting and
making powers.
gathering. the opportunity to be educated further
Materialistic possession didn't reducing their capacity to earn - The lack of
Social life was
exist - except for tools and control over property further curtailed their
egalitarian (despite
livestock. economic capabilities - even in the cases
barbarism) - women
where they could control property the lack
were also hunters &
of education lead to the under-utilization of
gatherers - no state
such property.
or organized
government.

"the power of men to exploit women systematically springs from the existence of surplus wealth, and more directly,
from the state, social stratification, and the control of property by men includes men's ability to deny women
sexuality or to force it upon them; to command or exploit their labour or to control their produce; to control or rob
them of their children' to confine them physically and prevent their movement; to use them as objects in male
transactions; to cramp their creativeness; or to withhold from them large areas of the society's knowledge and
cultural attainments".

The Second Sex (Simone De Beauvoir, 1949)

Simone De Beauvoir
A French existentialist philosopher (An individual, not society/religion/law, is solely responsible to give meaning to
one's life worth).

"humanity is male and man defines women not as herself but as relative to him"

Androcentrism: practice of putting a masculine point of view at the centre of one's world view, culture, and history,
thereby marginalizing femininity e.g. most legislations use the term he when referring to an individual followed by the
General Clauses Act, highlighting that he includes she - thus making women the second sex.

Waves of Feminism
First Wave
(19th & early 20th Century)
(Industrial Age) - concerned with
Right to Vote - The Second Sex was
published in 1949, 3 years after
France granted women the right to
vote & 4 years after the end of World
War II.
Second Wave
(1960s - 1980s) - broadened the
scope; aimed to achieve political,
social & economic equality -
cultural inequalities, gender
norms, role of women in society,
equal pay, etc. - this wave however,
failed to achieve its goals.
Third Wave
(1990s) - a continuation and reaction
to 2nd wave (and achieve its goals) -
Also included the behavioural aspect
= how men see women? or how women
see themselves? - cannot be achieved
through legislation - requires social
reform - will take substantial period

Intro to Simone De Beauvoir video of time - thus the 3rd wave goals are
not easy to achieve.

2 Factors that can improve the Everlasting Disappointment of

condition of women: Women
1. Participation in production/share in property = Female Menstruation - against the oppressive stigma
Allowed to go out & work + get share in property of associated with it.
father/husband/son. {maybe she had in mind

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 education of women when talking about participation Against importance also given to female virginity (at
in production as some basic knowledge is required to marriage), and female sexuality (including copulation,
work} marriage, motherhood, and prostitution).

2. Freedom from Reproductive Slavery {Note: She is NOT
against reproduction/menstruation BUT is against
reproductive slavery & the stigmatization of
menstruation. ONLY the exploitative aspect of gender
role division is bad i.e. when woman is forced (no
choice)}
e.g. private sector companies usually against
employing newly married women or those expecting
children as it would ensue maternity leaves, etc.
which wouldn't be economically viable - thus false
importance associated with motherhood/sexuality,
etc. diminishes job opportunities for women.

Motherhood left woman riveted to her body like an
animal and made it possible for men to dominate her.
Men oppress women when they seek to perpetuate
family and keep patriarchy intact.
Disability is NOT inherent in these biological traits of
females (menstruation, virginity, sexuality, etc.) BUT
is in the perception of society on them.

Marriage almost always destroys woman

One of the most controversial statements
made wrt. to feminism, especially during
her times - led to birth of Cancel marriage
movement.
This movement has however been criticized for being too superficial
i.e. the problem lies NOT in the institution of marriage per se BUT
rather in the way marriage is perceived by society - as a means to
allocate gender roles to men and women (especially to women as
caretakers of home and family).

In India a common reason for men to consider marriage is to have a

caretaker for his parents for the rest of their lives (what isn't taken
into consideration is that the parents of the bride are also getting
old).

Thus the intention behind the marriage is a key consideration in

determining whether that marriage will or will not destroy the
woman.

Suggested Readings
Good Women do not Inherit Land - Politics of Land & Gender Justice in India
(Nitya Rao)
Studied the socio-political setup of Gender Justice in property rights in e.g. in a family there were 3 siblings (2
Chhattisgarh - Observed: despite the legal developments wrt. property brothers & 1 sister) who were to inherit
rights for women (equal share in ancestral property) there is a social the ancestral property on the death of the
barrier to women inheriting and enjoying property and hence to their father - now the daughter lacking
development - It is perceived by society that Good Women (Sanskari) education wasn't financial independent
ought not to claim for inheritance in her ancestral property and and sought the help of her brothers for
definitely mustn't approach courts to enforce their property rights. performing her marriage - they refused to
offer assistance on the basis that she
relinquished her rights to seek assistance
from them the moment she claimed a
share in the ancestral property.

Empowerment of Women (Yasmin Mogahed)

Nature dignifies both men and women in their distinctiveness not in their
One of the most prevalent sameness.
standards made for The condition of women should not be judged in the standard of men - e.g.
woman, has been the in an ATM there are separate lines for men and women - the men question
standard of men. this as being counter-intuitive to gender equality - BUT Yasmin argues that
men are not the standard - the standards of women (as to what is given to

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 her) must be based on her condition as should be the case for the standards
of men - attempts mustn't be made to devise a common standard for both
genders, especially not one that is based on men - thus affirmative action in
favour of women.

Western Feminism has removed God from the scene leaving the standard of
men as the only standard - thus the western feminist is forced to find her
value in relation to a man.

In so doing she has accepted a faulty assumption - since man is the

standard, a woman can never be a full human being until she becomes like a
man.

Cinderella Complex - Women's hidden fear of Independence (Colette Dowling)

The emancipation of women are in the hands of women only - NOT like a fairy tale where a prince on a white horse
would come to save (emancipate) her - this idea of women should stand up for themselves can also extend to other
oppressed classes, e.g. Dalits, lower caste, minorities, etc. - the idea that the upper caste would stand up for the lower
caste, or the majorities for the minorities are beliefs of an ideal world - until then stand up for oneself.

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