Jurisprudence is a theory of law and a philosophy that deals with what law is and what law ought to be. It is the study, knowledge and science of law. It provides the basis for what law is today. Feminist Jurisprudence is a philosophy that stems from the historical subordination of women. It refers to the struggle against the subordination of women and the demand for equal rights for men and women. The concept of feminist jurisprudence first came to light in the 18th century. In India, feminism is not a new concept and existed since before. During the early Vedic period, women were treated equally to men and received the right to education, right to freedom of speech and expression, the right to work, etc. Ancient scriptures from the Vedic period emphasise the need to respect women and unlike in most Western civilizations- women were not considered a burden at any point. However, towards the end of the Vedic period, the rights of women and their representation significantly deteriorated which led to the introduction of the various concepts on the line of feminism. However, the term ‘feminist jurisprudence’ actively came to light only in the 18th century.
Women, back in the 18th century, were subjected to a lot of subordination and gender-based discrimination. Women did not have access to education and employment. Specific roles were assigned to women which were majorly domestic. Women were not allowed to express their views freely and neither were they involved in the political environment of the society. Women’s subordination came out as an issue during the French Revolution, which lasted from 1789 to 1799. This was the first time western women voiced out their opinions regarding the discrimination they faced in society. Similarly, in India, the struggle for women’s rights started in 1825 with colonial rule which brought modernisation and Western concepts to India.
History was always his story- it is time to also make it her story.
There was hardly any emphasis on women and their struggles throughout history. The norm that was set in society back then was also based on the male perspective and male history, which put women down to a low status in society. Women were merely being used as objects whose main purpose was to marry and run a family. Anyone who deviated from this norm was considered an outcast and abnormal in society. It was this environment that led to the creation of Feminist Jurisprudence.
Feminist Jurisprudence has a two-fold approach. The first approach is an opposition to all the laws and legal frameworks that existed in history as they were all written only from a man’s perspective and women did not get any rights. Example post revolution France established a democratic form of government, a constitution was made providing rights to different people. However, women were not given the right to vote, and neither were they involved in any political issue. For that matter, across countries, we can observe that women only got the right to vote in the 20th century. Similarly, the offence of domestic violence and rape was never criminalised back then. Many societies did not recognise domestic violence as an offence. Education was not a fundamental and compulsory right given to all people and neither was access to employment.
Even in India, during this period the right to education and vote were not given to women, contrary to what was followed in ancient times in India. In Indian history, we can observe a huge transition from the early Vedic period to the later Vedic period with regard to women’s rights. With the rise in the number of commentaries and digests, various communities had their own interpretation of women and the rights that should be provided to them. This differed even between Hindu schools of thought such as the Mitakshara and Dayabhaga, both had different interpretations of a woman’s role in society. This dynamic shift in women’s rights resulted in practices that led to the subordination of women in India, like the rest of the world. Various laws and legislations further supported this by equating women to the lower classes of society. For instance, there were no acts in place to criminalise the offence of rape and sati. It was introduced only later during the 19th century.
The second approach of feminist jurisprudence is to advocate for new laws and legal frameworks that are women-friendly and consider the problems that women are going through. This included the right to equality where women were also being treated the same as men. Hence, Feminist Jurisprudence not only protests against the historical male-dominated laws but also advocates for new laws and legal frameworks that are friendly to women and give equal rights to them.
In order to understand Feminist Jurisprudence, it is pertinent to understand the various types of feminism that exist. Different feminists in the West had different approaches to advocating for women’s rights resulting in different types of Western Feminism. The primary types are:
1. Liberal Feminism
Liberalism is a philosophical concept that emphasises individual freedom and liberty. Liberal Feminism stems from the concept of individualism. It believes that every individual has the right to make decisions for themselves and live their life on their terms. It disregards the norm that society has placed on women and believes that the reason for women’s suppression is cultural and psychological factors. This was first advocated by Mary Wollstonecraft in 1792. It is one of the most widely believed theories of feminist jurisprudence. Within liberal feminism, there exists a divide, where some people believe that women should be involved actively in politics including contesting and leading different functions in the government. The other faction believes that women should not be as involved as men in politics and should restrict themselves to merely opposing man-made laws while advocating for new legal measures that are women-friendly. However, both factions do believe in the personal autonomy of women and that remains the premise for liberal feminism. Liberal Feminism remains one of the most relevant forms of feminism and I believe it is one of the most widely sought theories. As suggested, personal autonomy is something that is key for everyone and cannot be restricted on the basis of one’s gender.
2. Marxist Feminism
Marxist Feminism is based on the political thinker Karl Marx. Karl Marx argued that the struggle between the various classes in society occurs due to the economy. Marx viewed everything from the perspective of the capitalist economy being the root cause of all struggles. Thus, Marxist Feminism, as the name suggests, refers to a philosophy that propounds that the root cause of women’s oppression is capitalism. Marx advocates that this led to the dominance of men over women and the domestic help offered by women was not recognised as productive labour due to the capitalist style of the economy. The nature of work done by women was primarily not recognized if it did not offer any capital in return. The proponents of this theory believe that in order to understand the reason for the oppression of women, one must analyse the relationship between the image of women and the work done by them. The solution Marx provided to solve this was a shift from a capitalist to a socialist form of economy where everything is state-controlled and the state can ensure equal rights are given to all genders. Marxist feminism is widely debated because this theory holds the economy responsible for the gender divide. However, in my opinion holding the economy and the capitalist form of the economy as the only reason for the gender divide is not entirely true considering there are various cultural and social factors that play a role in gender inequality.
3. Radical Feminism
Radical Feminism gained momentum only in the 1960s. It was inspired by the Liberal Feminism movement. Radical Feminism is also known as dominant feminism as it advocates for a great change in the order of society. It views gender inequality as an issue that resulted from the domination of men over women. The goal of radical feminism is to eradicate the concept of male supremacy altogether from all aspects and roles, including politics, economy, military, etc. Like Liberal Feminism, Radical Feminism also advocates for gender equality and the removal of patriarchy. The main difference between radical feminism and liberal feminism is the approach towards maintaining gender equality in society. Radical feminism calls for a stronger approach in dealing with the patriarchal order of society whereas liberal feminism focuses on a more peaceful approach towards the same. They view males as the oppressors and the reason for all human oppression. Radical feminism is one of the most highly debated theories of feminism due to its strong and extreme approach towards patriarchy. Many people view it to be not the right form of protest against the suppression of women, but at the same time, a lot of people view it as a necessity for establishing gender equality in society. Radical feminism often has a threat of turning into pseudo-feminism, which advocates for the dominance of women in society and not equality. Hence, I believe it may not be the most suitable approach towards women’s rights and equality in the world.
4. Socialist Feminism
Socialist feminism believes that the reason behind women’s suppression is both the class and gender construct in society. Juliet Mitchell was one of the major proponents of this theory. It can be considered as a mixture of both Marxist and liberal feminism and this form of feminism views family to be one of the key actors and reasons behind women’s oppression, but at the same time, various other factors contribute to this oppression such as lack of employment, private property, culture, etc. So, it combines both gender and class to be reasons behind women’s suppression. This type of feminism talks about how women are being suppressed even with their families by men controlling the reproductive choices, financial choices and livelihood choices of men. Religion and politics also play a key role in this type of feminism, wherein both these factors are considered to be highly male-dominated and influence the suppression of women to a great extent. For example, many religions don’t allow divorce or even abortion and similarly many countries have illegalized abortions. This deprives women of their right to personal autonomy and livelihood. I believe socialist feminism to be of great relevance at present due to the increasing influence of the economy on social and cultural factors. Furthermore, it emphasises all aspects as the reason behind gender inequality as against only one factor.
Feminist Jurisprudence is a very important legal and social theory. It has impacted law to a great extent, and it has resulted in the upliftment of women in society. It plays a major role in promoting women’s rights and gender equality. There has been great development over the years with many countries advocating and aiming to achieve gender equality. The legal system has also transitioned greatly from laws which did not let women vote and be involved in politics to now giving provisions for women to lead different governments. Even though the status of women has improved greatly over the years, the goal hasn’t been achieved entirely yet. We can yet observe so many cases of inequality and patriarchal mindsets in societies even in India. Hence, there is still a long way to go before obtaining absolute gender equality across the globe, emphasising the importance of feminist jurisprudence.