AK Roy :
Feminist legal theory: Feminist legal theory is based on the belief that the law has been fundamental in women’s historical subordination. The Project of feminist legal theory is twofold. First, feminist jurisprudence seeks to explain ways in which the law played a role in women’s former subordinate status. Second feminist legal theory is dedicated to changing women’s status through a reworking of the law and its approach to gender.
History: Martha Fineman founded the Feminism and Legal Theory Project at the University of Wisconsin Law School in 1984, to explore the relationships between feminist theory, practice, and law, which has been instrumental in the development of feminist legal theory.
Contemporary legal theories, such as feminist legal theory, are interested in the relationship between law and power, including modes of domination. It would be far to say, however, that even these newer approaches draw heavily on traditional debates over natural law versus positivism (e.g. both feminist and critical race theory tackle the problem of essentialism in law-the tendency to universalize the specific and culturally contingent nature of human behaviour). As with all theory jurisprudence: reflects the social concerns of the society that brings them into being. Both traditional and contemporary natural law theory and traditional and contemporary natural law theory and traditional and neopositivism reflect the values and concerns of the theorist.
Main approaches to feminist legal theory
The four primary approaches to feminist jurisprudence are:
* the liberal equality model;
* the sexual difference model;
* the dominance model;
* and the postmodern or anti-essentialist model.
Each model provides a distinct view of the legal mechanisms that contribute to women’s subordination, and each offers a distinct method for changing legal approaches to gender.
The liberal equality model:
The liberal equality model operates from within the liberal legal paradigm and generally embraces liberal values and the rights-based approach to law, though it takes issue with how the liberal framework has operated in practice. This model focuses on ensuring that women are afforded genuine equality as opposed to the nominal equality often given them in the traditional liberal framework-and seeks to achieve this either by way of a more thorough application of liberal values to women’s experiences or the revision of liberal categories to take gender into account. Susan Okin (1946-2004), for example, has critiqued liberal approaches to justice.
The sexual difference model:
The difference model emphasizes the significance of gender differences and holds that these differences should not be obscured by the law, but should be taken into account by it. Only by taking into account differences can the law provide adequate remedies for women’s situation, which is in fact distinct from men’s. The difference model is in direct opposition to the sameness account which holds that women’s sameness with men should be emphasized. To the sameness feminist employing women’s differences in an attempt to garner greater rights is ineffectual to that end and places emphasis on the very characteristics of women that have historically precluded them from achieving equality with men.
The process of law reform is fraught with difficulties for all those who take part. The benefits for those who are the subject of law reform are also often dubious. Many sex-workers do not consider the legislation to be in their interests and, like Marcia Neave, think the legislation supports only those with power and money to establish licensed brothels for profit. Sex workers who want to work periodically or independently think the legislation undermines their efforts to earn a livelihood.
Research on the impact of the legislation on sex workers suggests that prostitutes regard the legislation as reinforcing the image of the profession as ‘dangerous’ and morally and biologically unsanitary.
The dominance model: The dominance model rejects liberal feminism and views the legal system as a mechanism for the perpetuation of male dominance. It thus joins certain strands of critical legal theory, which also consider the potential for law to act as an instrument for domination.
In the account of dominance proposed by Catherine Mackinon, sexuality is socially central of the dominance. Mackinnon argues that women’s sexuality is socially constructed by male dominance and the sexual domination of women by men is a primary source of the general social subordination of women.
The anti-essentialist model:
Feminists from the postmodern camp have deconstructed the notions of objectivity and neutrality, claiming that every perspective is socially situated. Anti-essentialist and intersectionalist critiques of feminists have objected to the idea that there can be any universal women’s voice and have criticized feminists, as did Black feminism for implicitly basing their work on the experiences of white, middle class, heterosexual women. The anti-essentialist and intersectionalist project has been to explore the ways in which race, class, sexual orientation, and other axes of subordination interplay with gender and to uncover the implicit, detrimental assumptions that have often been employed in feminist theory.
In the 19th century, sexologists, criminologists and other ‘experts’ decided that prostitutes were biologically different from ‘normal’ women. Sex work, in this framework, shifted from being ‘sinful’ to ‘sickness’. This location of ‘difference’ enabled surveillance and solution of sex workers. They came to be treated as both a moral and a biological hygiene problem.
In the early 1960s, people began to question the right of the state to intrude into matters of private morality. To understand this social shift in attitude, we need to look at the work of an influential English law reform committee that inquired into the regulation of prostitution and homo sexuality. In 1957, the Report of the Committee on Homosexual Offences and Prostitution (the ‘Wolfenden Report’) was presented to the United Kingdom Parliament and led to legislative reform. The report reflected the more liberal views of the 1960s towards sexuality and private life.
The parliament did not consider the report saying that it is not their primary duty to decide what are the essential elements of criminal offence. They further observed that it is not their function to intervene in the private lives of the citizens or to sack to enforce any particular pattern of behaviour. They do not believe it to be a function of the law to attempt to cover all the fields of sexual behaviour. Nor indeed is prostitution as such.
(The author is a Senior District & Sessions Judge on PRL.)
