UNIVERSITY OF BOTSWANA

DEPARTMENT OF LAW

LAW 432: JURISPRUDENCE

LECTURER: Prof. Kenneth A. Acheampong

FEMINIST LEGAL THEORY (FEMINIST JURISPRUDENCE)

THE CONCEPT AND ESSENCE OF FEMINIST JURISPRUDENCE

ESSENCE OF FEMINISM: (i) To make men and women aware of the ways in
which patriarchy has distorted gender issues and to redress the imbalances
between men and women occasioned by men’s general dominance of society.
(ii) To contribute actively to the efforts, at all levels of society both national
and international, to eliminate discrimination against women, both overt and
covert, and to help institutionalise the principle of equality between men and
women.

THE CONCEPT OF FEMINIST JURISPRUDENCE: (i) The concept of feminist

jurisprudence is jurisprudence that underpins feminism’s rejection of
patriarchy, the pervasive dominance in and of society by males. [“Patriarchy”:
A society, system or country that is ruled or controlled by men.] (ii) Feminist
jurisprudence totally rejects any discriminatory distribution or apportionment
of societal resources, opportunities and privileges premised upon the
immutable accident of nature in terms of one’s sex (that is being a male or a
female). (iii) Feminist jurisprudence rejects the myth, which is prejudicial to
women, that men are superior to women and have a natural right to dominate
them, i.e., women (the ancient philosopher Aristotle held such a view).

GENERAL POSTULATES OF FEMINIST JURISPRUDENCE: (i) Feminist

jurisprudence both questions and derides the concept of legal objectivity and
contends that such a concept is a myth and does not exist in reality. (ii)
Feminist jurisprudence contends that legal systems are thoroughly dominated
by men and that through this dominance they, i.e., men, have also controlled
the economic, social and political systems to their advantage. (iii) In the
context of this dominance, men have reserved for themselves the most
powerful public roles; women are usually given token representation in such
roles. (iv) Again, this dominance has led to women being generally confined to
subservient roles in society; thus, women generally play second fiddle to men.
(v) This dominance has eventuated in women not having much voice in the
shaping and effectuation of legal systems in terms of the systems upholding of
the basic or fundamental human rights that women should have by virtue of
the common humanity that they share with men. For example, some societies
still deny women the franchise, the power to vote and, thereby, contribute to
the decision as to who should wield executive and legislative powers of state.
(vi) Feminist jurisprudence contends that law has a male character as male
language dominates legal language, literature and discourse, in general. For
example, it is generally said that “Law is man-made”. This gives the impression,
prima facie, that law is cast in the image of men, even if statutory instruments,
such as Interpretation Acts, state that the male word “he” represents both
men and women and that wherever the word “man” is used, it, also, includes
“woman”. (vii) Feminist jurisprudence maintains that women have for a very
long time been legal appendages of men and, hence, have had no locus standi
in judicio in seeking the assistance of the law when dealing with legal issues .
For this reason, women have had to vindicate their rights through men, be
they their fathers or their husbands and, worse of all, their own children who
are male.

PRINCIPAL STRANDS OR PHASES OF FEMINIST JURISPRUDENCE:

[1] 1ST PHASE FEMINISM (The Emergence of a Feminist Jurisprudence) – (i)

This phase (or “first wave”, as some refer to it) of feminism appeared in the
C19th (nineteenth century) and continued into the early C20th (twentieth
century). (ii) Early motivation comes from the C18th, precisely 1792, the year
in which MARY WOLLSTONECROFT published her book titled A Vindication of
the Rights of Women. (iii) Women in this phase of feminism fought for, inter
alia, the following: the right of married women to own property; the right to
move beyond the domestic sphere in order to attain education and enter
professional and political office; and the right of legal access to contraceptives
(SEE CEDAW, 1979, on family planning). (iv) PROFESSOR ADRIENNE VAN BLERK
– “By making skilful use of liberal arguments and the self-proclaimed standards
of the law to achieve fair, rational and impartial treatment for women, first-
phase feminists indicted law on its own terms and offered the intellectual
justification for the feminist call for equality. Liberal feminists thus called upon
liberals to account for their own stated principles of universal human rights”.

[2] 2ND PHASE FEMINISM (The “Not Different”/“Difference” Debate) – (i)

Whereas 1st Phase Feminism accepted the universal principles of the legal
system like equality, which were supposed to be neutral, and only challenged
the arbitrary manner in which they were applied (to women’s disadvantage),
2nd Phase Feminism developed theories of these principles, including equality,
which could account for certain differences between men and women. (ii)
Biological Differences - Initially, this debate was limited to biological
differences by which women’s role as child-bearers was seen as the cause of
women’s oppression. (iii) Pregnancy was seen as invasive, dangerous and
oppressive; hence, it was argued that women would be truly liberated only
when technology made human reproduction outside the female body possible.
(iv) Dominance Theory, championed by CATHARINE MACKINNON, was
influential during the 2nd Phase. (v) By this theory, male domination has
allowed men to possess power to dominate or subjugate women and, hence,
set the template for debate on women issues, promote men’s language and
represent or constitute the norm or yardstick for measuring women. (vi) This
male dominance ultimately protects or safeguards institutions of patriarchy
and perpetuates women’s subordination( E.g. despite a recent Indian Supreme
Court judgment, men have, physically, barred women from entering a certain
Hindu Temple) (vii) In this context, MacKinnon focused her work on legal
issues like rape, sexual harassment and pornography, which confront women
particularly (E.g., News Item – North Korea – women have come to accept rape
as almost normal as very little, if anything at all, is done by the state to
dissuade men from such practice; Sudan – a child bride stabbed her husband
to death after the husband’s relatives physically held her down while the so-
called husband raped her) . (viii) Relational Feminism (or Cultural Feminism)
was, also, prominent during 2nd Phase Feminism. (ix) This theory sought to
move feminist discourse away from liberal theory’s focus on the essential
similarity between men and women, which should be the basis for the
possession of equal rights and opportunities for the sexes. (x) CAROL GILLIGAN
was an architect of this theory by which feminists sought to have legal systems
stop marginalising the female ethic and integrate it as much as the male ethic,
which permeates the law. (xi) Gilligan called this female ethic “the ethic of
care” in her book In a Different Voice published in 1982. (xii) To Gillan, it is the
marginalization of this women’s ethic of care by

legal systems that lies at the heart of women’s domination by men. (xiii) While
the male point of view is largely oppositional that of females is largely
relational in the sense of the preservation of relationships and concern for
others. (xiv) This affirmation of feminine attributes by Relational Feminism
challenges patriarchy and its concomitant emphasis of masculine norms and
calls for the law to recognise women’s difference and, hence, feminine norms.
(xv) However, MacKinnon criticises Gillan’s ethic of care as no more than a by-
product of women’s subordination. (xvi) To MacKinnon, the affirmation of
differences in biology, experience and identity between males and females is
unhelpful to the feminist cause and that the only difference that matters is that
of difference in power wielded by men and women in society. Such difference
forms the basis of male domination and it is the ending of this dominance that
is important and which should engage feminists.

[3] 3RD PHASE FEMINISM (Postmodernism) – (i) Feminists of this phase of

feminism are sceptical of the notion that a single solution can be found to deal
with the problem of women’s subordination; hence, they are against
generalisations on this issue. (ii) They believe in the more particularised
approach by which they abandon the general controversies over equality and
difference between men and women. (iii) They stress difference as not only
being relevant in terms of distinguishing women from men but, also,
separating women from women in terms of their subjugation by the
patriarchal society. (iv) They strongly believe that gender is a social construct
by which women have been dominated by men through traditional attributes
of women that have constrained the power, freedom and true nature of
women. (v) Thus, the goal of this phase of feminism is to find out how this
social indoctrination of women occurs and to combat it. (vi) Language is an
example of such indoctrination as it can have a patriarchal bias (in men’s
favour). (vii) Examples of such language are: MARY DALY, feminist theologian:
Beyond God the Father (published 1973) – man is created in the image of God
while evil is cast in the image of woman; LESLIE BENDER: word “woman” is
derived from the word “man”; “a reasonable man” (the standard of care for
negligence in law; now “a reasonable person” used at times though); the “man
on the Clapham omnibus” (male example of the reasonable person); sexual
intercourse is described from the male perspective as “penetration” and not,
for example, “enclosure” (Vide Leslie Bender, “A Lawyer’s Primer on Feminist
Theory and Tort” (1988) 30 Journal of Legal Education 3, at 15 – 22].

RESPONSES TO THE CONCERNS OF FEMINIST JURISPRUDENCE:

[A] INTERNATIONAL LEVEL – (i) The international community, principally

through the United Nations, has sought to assist women to overcome the
debilitating effects of the discrimination they routinely suffer in society
through patriarchy. (ii) International human rights instruments adopted by the
General Assembly of the United Nations in this respect include the following:

GENERAL – (a) UN Charter, 1945 (Vide, e.g., Preamble, Para. 2 – The UN

DETERMINED “to reaffirm faith in fundamental human rights, in the dignity and
worth of the human person, in the equal rights of men and women and of
nations large and small”; Art. 1(3) – prohibits discrimination in human rights’
enjoyment on the basis of race, sex, language or religion; Art.13(1)(b) – ditto);
(b) Universal Declaration of Human Rights, 1948 (Vide Art. 1 – “All human
beings are born free and equal in dignity and rights ….”; Art. 2 – prohibits
discrimination in human rights’ enjoyment on the basis of, inter alia, sex; (c)
International Covenant on Economic, Social and Cultural Rights, 1966 (Vide Art.
2(2) – prohibits discrimination in human rights’ enjoyment on the basis of, inter
alia, sex) ; (d) International Covenant on Civil and Political Rights, 1966 (Vide
Art. 2(1) - ditto).

SPECIFIC - (a) Convention on the Political Rights of Women, 1952; (b)

Convention on the Nationality of Married Women, 1957; (c) Convention on
Consent to Marriage, Minimum Age for Marriage and Registration of
Marriages, 1962; (d) Declaration on the Elimination of Discrimination against
Women, 1967; and (e) Convention on the Elimination of All Forms of
Discrimination against Women, 1979 (acronym CEDAW; popularly referred to
as the Women’s Bill of Rights). (iii) CEDAW – This is the main international
instrument seeking to ensure the institution and realization of the
fundamental human rights’ principle of equality of men and women in all
spheres of human life and endeavours. (iv) Some jurisprudential underpinnings
of CEDAW relevant to the concerns of feminist jurisprudence are the following:
(a) ARTICLE 1 – defines ‘discrimination against women’ as follows: “For the
purposes of the present Convention, the term ‘discrimination against women’
shall mean any distinction, exclusion or restriction made on the basis of sex
which has the effect or purpose of impairing or nullifying the recognition,
enjoyment or exercise by women, irrespective of their marital status, on a
basis of equality with men, of all human rights and fundamental freedoms in
the political, economic, social, cultural, civil or any other field”. (b) ARTICLE 5 –
obligates States Parties to the Convention to take steps to eliminate prejudices
and practices that harm women’s interests in the following words: “States
Parties shall take all appropriate measures: (a) To modify the social and
cultural patterns of conduct of men and women, with a view to achieving the
elimination of prejudices and customary and all other practices which are
based on the idea of the inferiority or superiority of either of the sexes or on
stereotyped roles for men and women”.

[B] REGIONAL LEVEL – (a) European Convention for the Protection of Human
Rights and Fundamental Freedoms (European Convention on Human Rights),
1950 (Vide Art. 14 – prohibits discrimination in human rights’ enjoyment on
grounds such as sex); (b) American Convention on Human Rights, 1969 (Vide
Art. 1 - ditto); (c) African Charter on Human and Peoples’ Rights, 1981 (Vide
Art. 2 - ditto).

[C] NATIONAL (DOMESTIC) LEVEL – National legislation and constitutions may

prohibit discrimination on the basis of sex (Vide, e.g., S.15 of the Constitution
of Botswana, 1966).