Introduction

The word feminism has been derived from the Latin word
“Femina”’, meaning a woman. But, what does feminism imply?
There are different answers to this question due to discrete
perceptions of the people. The true meaning of feminism is a set
of movements with the object of determining, defending, and
establishing equal rights for women in the field of economy,
education, politics, etc., and social rights for women with equal
opportunities. Feminism is an ideology of gender equality, thus
a feminist can be a man, woman, or transgender as well. But,
here comes another question, i.e. what feminism jurisprudence
is?

Throughout world history, women have been deprived of equal

rights, status and opportunities by getting labelled as a fragile
section. They have been associated with the kinds of work that
are within the boundaries of their house. Feminism
jurisprudence or feminist legal theory claims that law should be
equal for all, without any social prejudice or male domination. It
carries the study of standards and application of different issues
that have developed and emerged within feminists’ thoughts and
eventually became a theory. This paper highlights the sketch of
modern jurisprudence, the feminist philosophy of law, and
various approaches to it, before concluding insights of modern
feminism jurisprudence.

Feminist philosophy of law – feminism in modern jurisprudence

Feminist philosophy of law has been a debatable issue among

liberal feminists and radical feminists. The former wants non-
discrimination, impartial society, and equal opportunities for
women, while the latter criticizes the existing structure of law,
claiming that it has an essence of patriarchal society. Feminists
believe that laws have been made from men’s perspective and
no one has ever considered women’s point of view and their
contributions in the past. There are three major ideological
schools of feminist jurisprudence:
 1. Liberal Feminism – This idea encourages independence,
freedom from old-aged stereotypes made by a male-
dominated society, and gender discrimination.
2. Radical Feminism – This idea is against inequality
encountered by women and male perception of
considering all men as superiors. It also condemns
patriarchal traditional beliefs, for instance, “ghunghat
pratha” imposed on women.
3. Cultural Feminism – This ideology is similar to that of
radical feminism, as it is concerned with giving wings to
the moral and ethical values of men as well as women
while appreciating the distinctiveness of men and
women.
The extensive influence of patriarchal thoughts on the legal
structure gets reflected in the condition of women in their homes
as well as in society. On that account, the feminist philosophy of
law acts on the following terms:

• Turn over a new leaf to restrict gender injustice, women’s

exploitation and promote freedom and equality for
women.
• Mirrors a profound shift in fundamental assumptions
about the nature of women and their significant role in
society.
• Re-examines the basic understanding of sex, gender, and
gender roles.
• Applies insights by considering problems at the junction
of sexuality and law.

Fundamental themes of concern in feminist philosophy of law

The different representations and approaches to feminism have

provided various considerable contributions to feminist legal
philosophy. In addition to this, feminist legal theory has been
evolved, with concerns such as equality, liberty, injustice, and
diversity prevailing at different loci. Notwithstanding these
different approaches, focuses, and insists, certain
themes remain common such as the rule of law, equality,
fairness in the law, human rights, etc.

The rule of law

The rule of law contains a set of principles that provide directions

to govern a community in a formal and procedural nature. The
formal nature involves norms like stability, publicity,
universality, and lucidity that govern a society. The procedural
nature talks about the practices by which these norms are
directed in institutions like courts, along with the independence
of the judiciary. Moreover, rule of law also comprises substantive
presumptions like liberty.

The legal systems are consistent and long-lived conceptual

systems that can always be challenged, but the aim of law
remains constant. Feminist critics argue that the consistent
forming of ideas for the rule of law tends to strengthen and
legalize the male-dominated or male-perceived status quo.

The status quo is an unavoidable bitter truth of law because

violations, wrongs, injustices, etc. are defined by variations of
law, typically from the old-aged status quo. Thus, feminist
philosophers of law have observed and concluded that there is
an invisible routine bias, which is so blended that it get accepted
not only by lawyers but also by its victim as well as its receivers.
Therefore, the primary task of feminist philosophers is to identify
such biases through different approaches. Moreover, they
condemn the patriarchal state of affairs and nearly universal
presumptions about gender imbalance.

Equality and difference

Men and women have always been viewed as remarkably

different and due to this reason, it has been found acceptable to
treat them differently in the law. One of the main reasons is
sexuality and gender tasks. Only women get pregnant and only
men have a muscular physique. Feminists think that
these differences are exaggerated and should be normalized.
For instance, pregnancy leave should be given to both women
and men, because pregnancy should be considered into biology
rather than a social construction, and therefore special
treatments like permitting maternity leave to women, will be
unequal treatment to men.

The foremost task of feminist philosophers is to communicate

what kind of equality is required against the patriarchal system.
On one hand, the liberal feminist focuses on Aristotle’s
principle of procedural equality which says – “similar cases
should be treated similarly, while different cases should be
treated differently, following their proportionality”, and on the
other hand, other feminists raise skeptical questions whether
there are any differences or not that law may legitimately take
into account. Thus, the biggest responsibility of the feminist
philosophy of law is to identify and acknowledge certain
differences without promoting sexism, establishing stereotypes,
and injustice.

Fairness in law

Another domain, where the feminist philosophers attempt to

reveal patriarchal norms, is the legal standard of fairness that
plays a significant role in law. In terms of traditions, such
standards were considered in an average reasonable man. This
formation highlights the excessive bias and gendered nature of
law. Presently, this standard has been altered from reasonable
men to the reasonable person, but feminist argues that such
standard still has an essence of male norms. Like in the old days,
today also, women’s rationality is decided and judged by
patriarchal thoughts. If a woman makes any social blunder, she
gets criticized and called irrational or unreasonable. Thus, a
persistent theme of masculinist ideology is still reflected in
the fairness of the law.
Public and private distinction

One of the central themes in the feminist philosophy of law is

the sensible distinction between men and women. Liberal and
radical feminists have independent thoughts regarding this
theme as well. Liberal feminists put forward the idea of keeping
the private life reserved for personal choice, but radical feminists
step up concerns that there are no specific lines that separate
private inequality and exploitation of women from that of the
public. Moreover, they argue that patriarchal and sexual
dominance infiltrates private relationships. Thus according to
feminist philosophers, all the legal systems that permit or
strengthen dominance in personal relations should be restricted
or reconstructed. For example, in Islamic law men are allowed
for polygamy but women are not. Thus, feminists cry out for
scopes of distinction between private and public life to avoid
discrimination that starts within four walls.

Human rights

Another concern under the feminist philosophy of law is human

rights theories. Progressively, a large number of societies have
rejected sexual inequality in law for the sake of basic human
rights. But some feminists praise this development but on the
contrary, they also argue that societal commitments to human
rights are all shallow and hypocritical. They are concerned that
many existing laws are nourishing with the reflection of
patriarchal thoughts. For example, in India, many civil services
or government exams have reservations for women and girl
children. It reveals two male-dominated thoughts, first is, a man
considers a woman less capable, that she needs special stairs
for basic educational rights. Second is, even now some girls and
women are not allowed to educate or work.

Diverse methodologies

In terms of methodology, feminist philosophers have

contributed and broken the ice in other areas of philosophy,
that feminist philosophy of law has recognized as well. Although,
there were genuine confusions and misunderstandings among
feminists regarding the term methodology. Feminist
philosophers found it quite difficult to find alternative thoughts
within the male-dominated academy. They were concerned or
precisely angered since all the popular and academic knowledge
was based on men’s lives, men’s perceptions, and associated
with the problems faced by men. Therefore, coping with such
struggles feminists made great attempts not only to apply but
also contribute their original thoughts to feminist knowledge
production.

Approaches to feminist philosophy of law

The liberal equality theory

Liberal feminism is a specific approach that deals with the

achievement of equality between men and women and mainly
focuses on the power of an individual to call off discriminatory
practices against women. Liberal feminists’ goal is to encourage
an individual to her instincts and abilities to help men and
women to become twins in the eyes of law as well as society.
The key difference between contemporary liberals and bygone
liberal feminists is their beliefs about freedom. A contemporary
liberal feminist holds on that the personal liberty and political
autonomy of women must be supported to achieve equality in
democratic liberal societies. A bygone liberal feminist, on the
contrary, claims that feminism’s political mission is restricted to
repelling laws that treat men and women differently, and such a
task has already been accomplished by them. Regardless of this
catfight, their ultimate aim is to organize women into groups that
can pronounce and raise awareness at huge levels.

The sexual difference theory

The theory of sexual difference carries arguments of gender

feminism. It argues that the root of women’s maltreatment lies
somewhere in the intersection of biology, psychology, and
culture. According to it, the cultural characteristics linked with
femininity are more superior and powerful than that of
masculinity in many aspects, and therefore, men and women
should spin their respective rational web.

The dominance theory

Dominance feminism is a theory of feminists that discards the

approaches of equality and difference feminism. The feminists
crying out for equality seek to have systematically equal access
to all legal, traditional, and social male privileges for women. On
the other side, feminists argue for gender differences and seek
different legal and social treatment for women to compensate
for past inequalities. Dominance theory, in some ways, supports
feminists who fight for gender discrimination because as per this
theory male social dominance is the result of well-established
inequality between men and women. Dominance feminism gives
credit to male concentrated efforts for women’s inferior societal
position. It claims that males controlled women through social,
sexual, and physical domination. Socially, they mastered women
by objectifying and exerting patriarchal control over them, while
making them legally powerless. Sexually, they imposed threats
of forced sex, using cat-calls, making sexual advantage in the
workplace, and moulding them as mere sex objects. As a Hindu
shlok says, “naari taran ki Adhikari” – a woman is worthy to get
beaten, implies men’s physical torture over women. Dominance
feminism is also known as Catharine A. MacKinnon’s feminism.

The anti-essentialist theory

Essentialism can be termed as a collection of fundamental traits

which are sufficient and necessary conditions to make things
similar. It carries two steps, the first is differentiating between
objects by considering the specific parts, and the second is to
characterize the things within a sole concept, to provide a better
understanding of essentialism. Feminist essentialism can be
imprecisely defined as an assumption of universal women’s
essence, originated from psychological and biological traits like
beauty, sympathy, nurturance, supportiveness, etc.
Essentialism fancies that all women share the same innate
characteristics. Anti-essentialism simply opposes this
assumption. Anti-essentialists defy the use of limited traits such
as biology and psychology in the definition of women because it
restricts the possibility of alterations in women, thus hindering
social recognition of women.

The postmodern theory

Postmodern feminism is different from other feminist ideologies.

It begins with the thought that modern feminists are overly
focused on gender differences between men and women, and
failed to recognize differences within each gender. Moreover, it
claims that gender has been developed by perception-based
discussions, that we adopted with the passing time. Apart from
these, postmodern feminists claim their key element is that
variants of patriarchy are due to women’s social characteristics.
These views were framed within the theory of intersectionality
which attempts to examine how social, biological, and cultural
classes simultaneously interact with each other.

Conclusion
Throughout history, men and women have been regarded not
only as distinct but also unequal in social status and power.
Women have been deliberately cast as opposites to men through
some outwitted contrasts such as behavioural traits, for
instance, men are assumed competitive, rational, aggressive,
intelligent, political, and dominant leaders, while women are
supposed as fragile, emotional, domestic, care-giver, and
underlings. These variants of assumptions have been
omnipresently followed in every political and economic
arrangement, from educational to religious institutions, to
beauty standards and relationships. Unfortunately, the law is no
exception. Therefore, the need for feminist jurisprudence felt
among the societies so that law cannot be patriarchal any
further, and to achieve such aim, feminists stood up, questioned
the male-insight laws or practices, represented examples of
illegitimate patriarchy, and guided the methods to establish
“equality” for women worldwide.