Optional course No 4

GENDER ISSUES IN
COMPARATIVE LEGAL
HISTORY
Lecture No 3
Contradictions of Gender Relations in Modernity

Assoc. Prof. Dr Vojislav Stanimirović

Assist. Prof. Dr Nina Kršljanin
Gender and civil law

• The great bourgeois revolutions failed to

bring changes within the families and
improve the position of women; however,
they created the idea of “universal
equality” which women recognised as the
basis for their fight for emancipation
• French Code Civil of 1804
• Civil Code of Austria of 1811 (ABGB)
• Legal transplantation: Serbian Civil Code of
1844; Turkish Civil Code of 1926
• England: Married Women’s Property Act of
1882
 Gender in front of the courts:
may a woman step forth?
• Wherever a married woman’s legal capacity was reduced, so
was her procedural capacity; male representative was often
required
• Women as witnesses – less credible than men
• Women as jurors – reluctantly admitted at the beginning of the
20th century, but in practice often avoided
• Legal education and practice of law – mid 19 th century, but with
lots of obstacles(limited access to universities, legal professions,
the bar)
• Women as judges – entry to these functions was even slower,
and the percentage of women judges stayed disproportionately
low; some Islamic countries appointed their first female judges
Lawyer Jeanne Chauvin swearing her oath in only in the 21st century
the courthouse, Paris, France, 1900
 • Gender profiling of crimes and criminals: “male”
and “female” crimes
• “Male” crimes: violent crimes, duelling, private
vendetta, crimes against military, civil and clerical
service, rape, homosexuality
Gender and • Rape: gender-neutral definition only in the

criminal law: late 20th century and is still absent from

many legislations
sex crimes • Homosexuality: lesbianism was mostly
overlooked by legislators
and more • “Female” crimes: adultery, witchcraft, abortion,
infanticide, prostitution, also – using poison as a
medium to kill
• Gender and punishment: different treatment of
men and women
Gender, public and
democracy: fight
for suffrage
• Public functions still dominantly belonged to
men; women could not vote, be elected, or
hold high public offices
• 19th and early 20th century – rise of strong
feminist and suffragist movements in many
countries, many linked to anti-slavery and
temperance movements; connections between
feminism and socialism intensified
• New Zealand 1893 – first to enfranchise
women; the second wave of enfranchisement
happened after the WWII and decolonisation
Religion, law and gender in a
secularizing world
 Catholic Church
• 1917 – first code of canon law deemed women inferior in many ways; limited capacity, various
religious bans, restricted access to theological studies; husband’s superiority was reaffirmed, as
well as many other directives about women’s inferiority contained in the Corpus Iuris Canonici
• second half of the 20th century – the Catholic Church changes its attitude towards women
• 1983 – the new code of canon law banned sex discrimination and recognised equality of every
kind among people
• absolute gender equality: the teaching function (munus docendi), the sanctifying function
(munus sanctificandi) and the power of governance (munus regendi)
• women can hold every ecclesiastical office which does not require the sacred order
 Protestant denominations developed their own legal systems
• since the beginning, three kinds of calling have been accessible to women: deacon, pastor and
bishop
• sometimes the function of a parish priest or of a bishop are jointly assigned to a married couple
 Orthodox Churches
• nowadays, Orthodox Churches have left the idea of women’s inferiority, but only partially; only
men are considered to be the true members of the clergy
Gender, race and colonialism: all
women are unequal, but some are
more unequal than others
• Slavery and colonialism; the myth of “lower” races
• Native patriarchal laws
• patriarchal, but often different from the western patriarchal
model
• colonialists enforced them when they were suitable
• when reforms were attempted, either there was local
resistance, or the reforms were seen as “white people saving
the backward natives”, which enforced harmful stereotypes
• reforms often worsened the position of native women, as
they ignored local traditions and social structure
• Stereotypes: white men = civilised masculinity, native men – either
effeminate, or savage and bestial; white women = delicately feminine,
dark-skinned women = sly and promiscuous
• USA and racism: segregation, black feminism