Legal theory or theories change with time. A theory can be appropriate for a time but can be useless for other period too. That’s why, with time many theories are emerging. In modern trends, there are five theories. Among these five theories, one of the most important theory is Feminist Jurisprudence.
Feminist Jurisprudence is a sub-group of Critical Legal Studies and post-modernist legal theory. We have a separate blog for Critical Legal Studies. Click here to read it. But in short, according to critical legal studies, law is politics. On the other hand, Post-modern legal theory challenges the liberal orthodox that society has a natural structure and history is one kind of process of evolution towards the natural structure.
Feminist jurisprudence has two terms. The term feminist refers to ‘in favour of female’ and Jurisprudence means ‘study of law’. There is no specific definition of feminist jurisprudence. Different jurists gave different opinions about this. But in a nutshell, feminist jurisprudence is the philosophy of law based on three equality which are political, economic, and social equality of sexes. According to this theory, law is not neutral and power is given in the hand of males. This theory believes, Mainstream is ‘Malestream’. This theory is also known as ‘Feminist Legal Theory. Many scholars are against this theory. According to them, there is no need for a different school of legal thought deserving the title ‘Feminist Jurisprudence.’ But many scholars have argued this view and in modern times this concept is actually important. We need to understand why we need feminist jurisprudence.
The Importance of Feminist Jurisprudence
We can’t deny the fact that ours is a patriarchal society. So when laws were made, it was an outcome for men only. The process was basically thinking of men’s perspectives. Even when the laws for women were enacted for women, it was men’s understanding of women. So, basically, the law sees women through male eyes. We can see the reflection in many statutes. Here are a few of them:
1.In adultery (it is mentioned in Section 497 of Indian Penal Code 1860), it won’t be a crime if the sexual intercourse is with the consent or connivance of the husband of the women. Basically, this treats woman as Chattel i.e. personal possession which violates a woman dignity. In India, adultery is no longer a crime but in Bangladesh, this still exists.
2.The definition of rape given in Section 375 of Indian Penal Code 1860, is the penetration of the vagina by the penis. But, all forms of penetration should be in the definition of rape which was ignored. Even in the case Sakshi V Union of India, the Supreme Court said, the definition can’t be altered.
3.One of the defenses against rape is the immoral character of the victim which is so obnoxious in today’s modern perspective. This is mentioned in Section 155(4) of The Evidence Act, 1872.
4.Marital Rape is still not recognized in both India and Bangladesh. The worst part is, sexual intercourse with own wife and the wife not being under 14 years of age is not rape.
5.The High Court of India gave a very peculiar judgment recently. A 39-year-old man invited a 12-year-old girl on the pretext of giving her something to eat. That man gripped her breast and attempted to remove her clothes. The High Court held that since he groped her without removing her clothes, it can’t be sexual assault.
These were some few examples. There are numerous examples of women are being treated differently in negative view comparing to men. That’s why feminist jurisprudence is so important. It seeks to incorporate feminist reasoning into law and legal scholarship.
Feminism and Feminist Jurisprudence
Both these two are different. Feminism is an old concept. The history of feminism is too old. Mary Wollstonecraft is the mother of feminism and through her book, A Vindication of The Rights of Women in 1792, women’s right and equality was getting established. But the term was first coined by Charles Fourier. There were four waves of feminist till now. The very recent wave was named as Me Too Movement. It was because of sexual harassment, violence against women, and rape culture.
But Feminist Jurisprudence is a modern concept. It started in the 1960s as a subgroup of the CLS movement and Pose-modern Legal Theory.
Types of Feminist Legal Theory
Different types of feminism have influenced to develop feminist legal theory. There are many types. But here we will discuss five types of feminist legal theory. They are
- Liberal Feminism
- Difference Feminism
- Radical Feminism
- Cultural Feminism
- Post-modern Feminism
From the name, its approach is liberal. It treats liberalization as an appropriate weapon to fight for the improvements of women. The main goal of this feminism is to fight for the equal right of women for hearing and expressing own thoughts as of men. Right is the epicenter of this feminism.
This type of feminism believes that equality forces women to aim to be like men but women deserve special treatment because they are different from men. By different, it means body structure, hormones, and other things. This type of feminism is completely different from liberal feminists.
This type of feminism believes women as a class but not as individual and are dominated by another class i.e. men. This feminism raised issues like marital rape, harassment, pornography, etc. There are major differences between liberal feminism and radical feminism. Liberal feminism accepts the law and its reasoning. On the other hand, radical feminism rejects this view as the reasoning structure of law correspond the patterns of socialization, experience and values of a particular group of privileged, educated men. Radical feminists believe that the rights of women are excluded and marginalized in law. That’s why they focus on women’s private lives.
Cultural feminism is completely different from liberal feminism and radical feminism. This type of feminism sees women as caring and connected to others. Radical feminists believe pregnancy and intercourse imply a violation of women’s privacy. On the other hand, cultural feminists see pregnancy, child birth and rearing as a matter of celebration and not as a matter of dread and despair. Cultural feminists care for both sides i.e. male and female. This is called Ethics of Care.
This type of feminism is a mixture of three types of feminism. Thery are
- Post Structuralism
- French Feminism
- Post Modernism
The aim of this feminism is to dissolve patriarchal norms. Patriarchal norms mean, all the controls and management are in the hands of men. According to this feminist, these norms lead to gender inequality.
Basically all these feminism, under whatever label, shares a common goal and aim, that is ensuring the rights of women and the betterment of women.
Impacts of Feminist Jurisprudence
Basically, the idea of feminism is spreading in society. That’s why we can see some positive changes in the society. Some of the impacts of this we can see in many statutes and here are a few of them.
- Dowry Prohibition Act, 1980 and 2018 India
- Maternity Benefit Act, 2017 India
- Domestic Violence Prevention and Protection Act, 2010 Bangladesh
- Sexual Harassment at Workplace Prevention, Prohibition and Redressal Act, 2013 India
These were all about Feminist Jurisprudence. Click here to read Jurisprudence articles.