Вы находитесь на странице: 1из 26


LL.M 2009/2010

The word Feminism originated in French politics in the 19
century as a
description of different groups that in one way or another sought to improve
the position of women.
A feminist thus is someone who holds that women suffer discrimination because
of their sex that they have specific needs and which remain negated and
unsatisfied and that satisfaction of these needs would require a radical change
or revolution in social, economic and political order as asserted by osalind
Feminist "urisprudence has its roots in feminist political activism in the #est
$for example, %&A and #estern 'urope( and the developing world such as
#omen)s movement in &outh Africa and *ndia
Feminism legal theory is firstly, the analysis of the extent to which the legal
system reflects and reinforces a male perspective. +atricia &mith has argued
that what feminist legal theories have in common is an opposition to the
patriarchal ideas that dominate society in general and the legal system in
&econdly it gives and analysis of how women)s differences from men should or
should not be reflected in legal rules, legal institutions and legal education.
,ne could argue that what is common to feminist legal theories is that they are
divergent responses to the inherent or socially construed differences between
men and women, responses regarding what these differences should mean
about the way we thin- about law. ,ne feminist response to difference is.
a( There are intrinsic differences between men and women
b( &ociety and law are organi/ed around a male standard and a male norm,
a situation which wor-s in the short0term and the long0term against the
interests of women. and therefore
c( &ociety and law should be reformed to remove that bias and to reflect
women)s experiences as well as men)s.
'nlightenment feminists, li-e 1ary #ollstonecraft, writings at the time of the
French evolution, asserted that women, li-e men, possessed the innate
See R kapur & B Crossman subversive Sites. Feminism Engagement with the Law in India (1996) and M
Desai Reflections from Contemporary omen!s Mo"ements in #ndia! in $ Dean (%d) Feminism and the
New Democracy (199&)'
capacity for reason. &uch feminists argue that women)s capacity for rational
thought had been suppressed by their upbringing, since they were forced into a
frivolous 2girly3 type of sociali/ation process, either being discouraged from
developing, or at least not encouraged to develop their intellectual faculties,
and provided with an inadequate education.
#omen had then been prevented from engaging in public life, through an
emphasis on supposed 2womanly3 private domestic responsibilities, and been
denied the opportunities to engage in political process.
For 4atherine 1ac5innon, male domination and exploitation of women in sexual
matters is centered to sexism and patriarchy. &he wrote6 2pornography, in the
feminist view, is a form of forced sex, a practice of sexual politics, and an
institution of gender inequality3
. %nder the 1ac5innon8 !wor-in view,
pornography wor-s to silence women by reinforcing the subordination of
women and the perception by men that women en"oy that subordination.
T)#** %(+"(!,&(+)(!, -*."&#*+ $- L*,./ F*0(!(+0
.1 G*!%*# .+ . '*!"#./ '."*,$#2 $- .!./2+(+
This approach entails exposing and explaining the gendered nature of law,
revealing how 9gender) is both ignores and enshrined in legal theory and
4onaghan suggests that this occurs in at least three ways.
i. :y analy/ing the content and application or impact of the law on some
or all women.
ii. :y examining the gendered nature of the concept and principles
underlying the law.
iii. :y considering the way in which the law constructs gender by invo-ing
images of women and thus compels particular gendered perceptions of
the social world.
Fineman)s analysis of family law has both examined the particular impact of
the law on women)s lives, as well as the role of the law in the construction and
perception of a gendered social existence.
Feminist legal thin-ers have also argued that the traditional categories of law
fragments and ignore women)s experiences. For example, law texts do not deal
comprehensively with 9gender based violence). The law relating to this will be
found, inter alia, in criminal law.
There is a fundamental divide, for example, between those that would argue
that gender oppression is a source of unity among women $radical feminism(
and those who would emphasis motherhood or human connection as a unifying
force $relational feminism(.
Mac)innon* +eminism ,nmodified* p 1-.
There is also an important difference between those who assert that women
are bound together by unifying factors $negative or positive( and those that
argue that the presence of other sources of difference such as race or class
undermines any unity amongst women as a group. !espite all these differences,
all feminists approaches to law regard gender as a, if not the, significant factor
in understanding the law.
31 M*")$%$/$,2
1ost feminist wor- on the law is characteri/ed by a methodology that
emphasi/es the need to describe the world in ways that reflect women)s
reality. 9the starting point of feminism wor- must be found in women)s lives
and not legal definitions).
This emphasis on women)s actual lives constitutes an important source of
feminism)s authority, both as the basis for theori/ing the law and as the basis
for action to change the law.
Feminism legal analysis has generally been grounded in practical problems
rather than abstract principles
. *t builds from the ground up. Thus, feminism
has, with some exceptions,
eschewed the development of a unifying 9grand
theory of law).
Feminists have generally wor-ed from particular, contextual accounts of
women)s experiences of the law to develop a detailed understanding of aspects
of the law and to identify 9concrete strategies for social change)
'1 T)* 4$/("('+ $- -*0(!(+0 .!% ")* /.5 6.+ (" $&,)" "$ 3*7
The assumption that the law in some way reflects social relations and
especially the unequal power relations between men and women is central to
most feminist "urisprudence, as is the aspiration to change this inequality.
Thus feminist approaches to law inevitably engage both with 9the law as it is)
as well as 9the law as it ought to be). Although feminist views as to what the
law 9ought to be 9differ, the 9ought) is almost always located within a broader
political pro"ect that see-s legal and social change. *ndeed, the adoption of
the label 9feminism) presupposes a political engagement with the law.
) Barlett +eminism 0e1al Met2ods! (1993) 13/ 4ar"ard 0R.(9
C Mackinnon 2as sou12t to de"elop a more totalisin1 t2eory! of la5* most e6plicitly set out in 2er 7ook
towards a feminist Theory of the State (19.9)
See R2ode 6(19 conna12an -8
1uch but not all feminist legal thought emphasi/es the goal of equality
between women and men, although the idea of equality is differently
expressed across various feminist perspectives.
Feminism "urisprudence thus engages with, and see-s to understand, the law as
vehicles of social change. 1any feminists may be s-eptical of the usefulness of
legal change in bringing about social change. >owever, most view the law as a
site of political struggle.
Although the law is imbued with gendered power in a way that harms women,
it can be harnessed in a positive way to improve women)s lives.
1. T)* #(+* $- /(3*#./(+0 .!% ")* *8'/&+($! $- 5$0*! -#$0 ")* +$'(./
1any of the philosophical roots of feminism engagement with the law lie in the
rise of liberalism and the egalitarian spirit of the enlightenment. ,f particular
was the nature of the new social contract that emerged between the state and
civil society and established a new relationship between ruler and ruled.
4ontemporary and modern feminists have critici/ed this social contract which
established and entrenched a gendered public8 private divide that both
enhanced the power of men in the public and private spheres at the same time
as it limited women to the domestic spheres
. For example, 1ary
#ollstonecraft)s classical response to @ean @acques ousseau in the vindication
of the Rights of Women
was an early re"ection of the idea of gender
differences that saw all women to be, by nature, less rational and less virtuous
than men.
#ollstonecraft opposed the consequent exclusion of women from rights and
benefits in the public sphere. Bearly eight years later @ohn &tuart 1ill and
>arriet Taylor
argued for the extension of rights to women on utilitarian
grounds. :oth texts were radical in their times. >owever, they were also
qualified responses that permitted certain women to enter the public sphere,
but did not fundamentally change the gendered public8 private divide
4arole +ateman has shown how social contract writers both explicitly and
implicitly preclude women)s acceptance as rational beings, capable of bearing
:2e classic contemporary criticism of t2e social contract is C ;ateman!s t2e se6ual contract (19..)
ollstonecarft (1&9()
(1.6.) on the subjection of women
See D Code women in o!itica! theory" from ancient misogyny to contemorary feminism (199/) c2apters
8 and 6
legal rights in the public sphere
, at the same time as they reinforced women)s
subordination in the private sphere. #riting about this 9fraternal social
contract), +ateman argues that.
The separation of the paternal from political rule, or the family
from the public sphere is also the separation of women from men
through the subjection of women to menThe fraternal social
contract creates a new modern patriarchal order that is presented
as divided into two spheres: civil society or the universal sphere of
freedom, equality, individualism, reason, contract and impartial
law- the realm of men or individual and the private world of
particularly, natural subjection, ties of blood, emotion, love and
se!ual passion- the world of women, in which men also rule
7. T)* F(#+" 9.:* $- -*0(!(+0; /(0("*% *!"#2 "$ ")* 4&3/(' +4)*#*
The first wave of feminism in the early 7D
century saw women challenge their
legal exclusion from rights in the public domain relating to the franchise and
educational and professional opportunities. 4haracteristically, these feminists
limited their demands to the public sphere especially politics, leaving the
sexual division of labor in the family untouched.
#omen gained the vote and obtained mush formal equality before the law0
that is, if men have certain rights and can do certain things, women should be
able to as well. #omen should be equally protected by the law and the law
should apply to all0 men and women0equally giving them equal treatment.
*n &outh Africa, as in other countries, it was generally women from the most
privileged strata of society $white, educated, 'nglish spea-ing( who challenged
women)s public exclusion
. *n 1911, some women net to form a national
suffrage society, the #omen 'nfranchisement Association of the %nion in &outh
>owever, the public8 private divide and the idea that motherhood precluded
women from equal participation in the public sphere were to be formidable
barriers to success. This was illustrated in 1917 Appellate division "udgment
that found that women were not included in the legal definition of a 9person)
and thus were not entitled to be admitted as attorneys
$ Rousseau directly failed to accommodate 5omen in 2is social contract t2eory' #n t2e 5ork of ot2er
5riters* 5omen 5ere a7sent in t2e assumption t2at it 5as t2e 2ead of t2e 2ouse2old (ine"ita7ly t2e man)
52o entered t2e social contract' See : Brennan and C ;ateman mere <u6iliaries of t2e common5ealt2!=
omen and t2e ori1ins of 0i7eralism! in < ;2ilip(ed) feminism and o!itics (199.) and C ;ateman the
Disorder of women (19.9) c2apter ('
;atema i7id -/
+ )a1anas & C Murray 0a5 and 5omen!s Ri12ts in Sout2 <frica9 <n >"er"ie5 (199-) #cta $iridica'
C alker9 omen and Resistance in Sout2 <frica (19.() (3
#ncorporated la5 society ?s 5ookey 191( <D 6(/
This "udgment was eventually overturned in 197; by the #omen)s Eegal
+ractitioners Act. &even years later, in 19;D, the vote was extended to white
women in &outh Africa.
The fight for women)s suffrage in &outh Africa was unable to escape the racial
divisions in that society as early commitments to the inclusion of 9qualified)
blac- women
soon eroded to support for the enfranchisement of white women
For African women, colonialism and segregation meant that their lives were
defined by rigid racial and sexual boundaries. The law was central to
maintaining these boundaries as it enforced racial segregation and reinforced
customary law as a gendered set of rules and customs that privilege men over
;. T)* +*'$!% 9.:* $- -*0(!(+0<').//*!,(!, ")* (!*=&./("(*+ $- ")* 4#(:."*
The modern women)s liberation movement, often -nown as the second wave
feminism, emerged out of the civil rights and often more radical movements in
the 19?D)s see-ing freedom and equality for women particularly in areas of
employed wor- outside the home, reproductive rights and freedom over their
own bodies and sexuality.
*n most countries, second wave feminism addressed issues of bodily autonomy,
choice and sexuality $violence against women and reproductive choice(, as well
as equality in the wor- place $maternity rights and sex discrimination( and in
educational opportunities.
1any of activists were female lawyers or legally trained, and many lawyers
developed feminism)s general view of treating women as equals or allowing
women to be free, into the legal world0 in universities and in legal practice.
A variety of legal scholars wor-ing in different areas with diverse perspectives
and concerns began to focus on feminist issues or on how the law impacted on
the lives of women, how it relates to women. whether it in fact treats men and
women as equals.
At the centre of this "urisprudence was the assumption, based on the
experience of women, that the law was suspect, that it was a masculine
framewor- accommodating male needs and serving male interests. *ts ma"or
points of development were in Borth America, %&A, the %nited 5ingdom and
:2is 5ould 2a"e 1i"en <frica and coloured 5omen t2e "ote on t2e same limited 7asis as <frican and
coloured men'
*n &outh Africa, the radical and socialist influences was felt when in the 19ADs,
women aligned to the national liberation struggle but wor-ing mostly within a
radical feminist framewor- began to establish organi/ations that supported
services to survivors of gender based violence. #ithin the national liberation
movements, in trade unions and community groups, women also began to
question issues of violence and women)s position in the domestic sphere.
<. T)* ")(#% 5.:* $- -*0(!(+0; ').//*!,(!, ")* '."*,$#2 $- 65$0*!7
The second wave of feminism was based on the assumption that gender
constituted a fundamental divide in all societies. third wave feminism turned
that idea on its head. *t challenged the idea that gender was a universal and
undifferentiated source of inequality and asserted the importance of race,
class, ethnicity, religion and culture in explaining and understanding women)s
different situations.
These challenges emerged from an intellectual resistance to the idea that
gender is a fixed source of unity, oppression or experience for all women, as
well as a political concern with the position of women outside the mainstream
white, middle class experience of the first world.
The third wave feminism has thus been particularly concerned with the position
of third world women, as well as women from minority groups in the first
world. *t has been influential in &outh Africa, given its race and class diversity
of women.
Feminism contributes to an analysis of human agency and the human condition
*n which emphasis is place on how human actors see- to come to terms with
their immediate circumstances and problems, the way in which the legal order
and social structure circumscribe their possibilities for action, and denote their
identities, and how in turn social identity is reproduced by the resulting
4entral to feminist tactics is deconstructing the discourse of male common
sense and attempting to create a new 9language of possibilities). >ere
feminists grapple with the tensions between the particular and the universal,
the concrete and the abstract. 'ach of these dualisms forms a different basis
for ma-ing claims in different periods of the history of feminism.
#e can see universalism in the movement from the suffragists to contemporary
liberal feminism, which stresses the extension of general rights to women.
while another movement, which particularly expressed in cultural feminism,
claimed a unique and particularly expressed in cultural feminism, claimed a
unique and particular sub"ect0 position for women. ,thers see- to integrate
other axes of sub"ect0 formation, such as class, race, ethnicity and sexual
FEMINISM PERSPETI>ES OF LA9; :.#($&+ +')$$/+ $- ")$&,)"
This section gives a discussion of the main schools of thought on feminism and
the law.
'ach of the feminist theories describes the oppression of women, its causes and
consequences and prescribes strategies for women)s liberation, however, their
approaches at handling the problem are varied and so is their experience.
#e highlight the similarities and differences in perspective in relation to
common feminist debates such as.
i( Bature of gender differences.
ii( *ts manifestation in and through the law.
iii( The manner and possibilities of social change through law.
Feminist perspective of law has developed from intellectual and political
engagement within different feminist approaches.
The approaches are overlapping and intersecting.
11 L(3*#./ F*0(!(+0
The movement originated in 19?Ds in America and 'urope and goes bac- to 1C
and 19
when 1ary #ollstonecraft started the struggle.
Eiberal feminism asserts the equality of men and women through political and
legal reform. *t is an individualistic form of feminism and theory, which focuses
on women)s ability to show and maintain their equality through their own
actions and choices.
#omen resorted to law to claim equal access to public sphere of politics wor-
and education. this is because women were oppressed by the power relations.
They were excluded to the men)s sphere e.g. employment and even right to
The theory is distinguished by its conception of a sexual undifferentiated
nature, when men and women are the same and are theoretically able to do
the same things.
Fender roles and differences are as a result of sociali/ation. &uch gender
differences have built over time and are embedded in our culture.
&o gender bias within the law is the result of unfounded and impermissible
gender stereotypes and assumptions about women. To remove the gender bias,
we must expose it, and then act to eradicating it through education, law
reform and litigation.
The liberal feminist aspires for men and women to receive equal treatment in
and by the law, so that they are placed at equal levels of the society. This can
only be achieved if law is neutral and impartial, capable of dispensing equal
They advocate for equal pay, equal educational and "ob opportunities and
abolition of sex role stereotypes. They support abortion and considers it a
private choice as well as provision of maternity and health benefits for women
$law must accommodate biological differences(.The theory has however been
critici/ed, which has led to further development in feminist thin-ing.
The ma"or criticism is sameness8difference debate.
As much as it contributed to inclusion of women in educational and business
institutions, it had become apparent the 2equality as sameness3 only benefited
some women in some areas. This is because the law reflected interest of white
middle class men, only white middle class women that benefited from the
The criticism gave rise to vigorous debate about the nature of gender
differences within the law and how it should be addressed.
The critics as-ed.
1. #as it reinforcing existing bias against women)s experienceG
7. #ouldn)t it be more difficult for women to live up to standards, if there
were standards made for male imageG
;. >ow will the approach help areas where men can)t feature e.g.
pregnancy and abortion
The liberal feminists defended the equality as sameness approach for
theoretical and strategic reason by developing a model of recogni/ing
biological based differences in law.
,thers adopted the 2difference3 approach, they accepted the need for
differential treatment arising out of gender differences, but this should aim at
ma-ing gender differences costless.
21 M.#8(+" F*0(!(+0
!eveloped in the 19ADs and CDs they attributed women)s oppression to social
class race and ethnicity. 1arxist feminism which focuses on the dismantling of
capitalism as a way to liberate women.
$urisprudence and le1al t2eory*
uni"ersity of 0ondon e6ternal pro1ramme
Step2en 1uest* <dam 1eaery*Bames penner*5ayne Morrison p1 (8&
1arxist feminism states that private property, which gives rise to economic
inequality, dependence, political confusion and ultimately unhealthy social
relations between men and women, is the root of womenHs oppression in the
current social context. *t loo-s at the family in a very negative and critical way.
To them capitalism, imperialism and sexism are inseparable and therefore
liberation of women is the removal of social class relations.
4lass oppression led to gender oppression Fredric- 'ngel argued women)s
oppression originated in the first division of labor between women and men in
the family thus raise of capitalism
The concept of capitalism was to maximi/e on profits and when men were
lowly paid, women had to supplement the law pay through domestic wor- or
This movement is unpopular to socialist states and the developments in 'astern
31 S$'(./(+" F*0(!(+0.
'merged towards the end of 19CDs as a response to gap of the 1arxists
feminism thoery. To them 1arxists did not properly critique the concept of
&ocialist feminism is a branch of feminism that focuses upon both the public
and private spheres of a womanHs life and argues that liberation can only be
achieved by wor-ing to end both the economic and cultural sources of womenHs
oppression. To them class $capitalism( and sex $patriarchy( combined explained
gender oppression.
They interrogated issues of patriarchy and capitalism in the wor- place and
family and also additional impact of gender oppression of social factors e.g.
They re"ect the liberal idea of law as a neutral and autonomous institution and
rather see it as the product of economic and political systems within a society.
They see- to eradicate all forms of oppression, by transforming the state,
society and economic disadvantages of women in and through law.
The emphasis on socio0economic equality is in contrast to liberal endorsement
of equality in the content and process of law.
The effect of socialism is apparent in third worlds, with their insistence on
understanding the relationship between gender, race, and class and capitalism
&ocialist emphasis that women must be part of the development process by
involving women in development issues.
The socialist feminist appeared to be 'uro0centric, their assumption was that
the west feminists were the experts of the theory and could be used as models.
The west feminist had an assumption that they could spea- for oppressed
African women and loo- at how the oppression could be stopped $colonialism
41 R.%('./ F*0(!(+0
!eveloped in the west in the 19ADs, as a criticism of both liberal and 1arxism
The oppression of women in a social order dominated by men is the source of
gender inequality. 1an is the enemy and must radically transform the
oppressive gender relations.
adical feminism is a IcurrentI within feminism that focuses on the theory of
patriarchy as a system of power that organi/es society into a complex of
relationships based on an assumption of Imale supremacyI used to oppress
adical feminism aims to challenge and to overthrow patriarchy by opposing
standard gender roles and what they see as male oppression of women, and
calls for a radical reordering of society.
All men benefit from the sexual hierarchy even if they themselves do not
oppress women, and all women are united in a common experience of
To them patriarchy is a specific form of a male domination based on the
powerful role of a father head. Their focus is on issues of women)s
subordination in the private sphere li-e violence, abortion, pornography and
sexual harassment in the wor- place.
They put sexuality, reproduction and patriarchy at the center of political arena
with the aim of enhancing women)s political consciousness and assert that
gender, production, reproduction and politics are the four domains of social
%nli-e the liberals who want equal education opportunities, they challenge the
quality of education, demand changes in the curriculum as education
stereotypes continue to marginali/e women, text boo-s especially literature
boo-s portray men as heroes and women as helpless individuals. They argue the
school environment also contributes to inequalities by portraying some "obs as
female "obs for some as male occupations.
%nli-e liberals fight for access to health, they argue that the health services
must empower women, women must have reproductive choices and thus
advocate for abortion on demand.
They further argue that the biological motherhood role was central to women)s
oppression. by changing this role women could improve their status.
The main achievement of this group is that they played an important role in
ma-ing contraceptive and family planning available.
,ne radical feminist 4atherine 1ac-innon argues that sex inequity is at the
center of all women)s subordination in the society and by the law. &ex
differences are inextricably bound up with unequal power relations between
women and men, and in sexual relations of domination and subordination. &he
illustrates how the laws relating to rape imposes rules on women that do not
reflect the experience of violation and allow men to escape conviction. >ow
obscenity laws permits pornography as freedom of oppression even though it
harms women. >ow description of abortion as a right to privacy places a veil
over the inequalities of the private sphere and allows the state to absolve itself
of responsibility for funding public abortion. how sex discrimination law based
on the standard of men, is ineffective in protecting women against
They see- social change through engaging the law, they re"ect a reformist
approach that would merely include women within existing structures but
instead transform the law and legal and political institutions.
>er wor-s influenced recognition of sexual harassment as new legal harm to
women in the wor- place and a form of sexual discrimination.
The wor-s of radical feminists has influenced law on gender based violence
especially in &outh Africa. *t has also influenced wor-s on international
women)s movements to include gender based violence and reproductive choice
within the meaning of international human rights.
1. The assumption that gender is the dominant form of expression has
mas-ed other inequalities such as race, class or sexual orientation. This
has privileged some women and others.
2. They fail to see the positive value of gender differences, thus
development of relational feminism.
3. The movement has a specific class of women i.e. America wor-ing class
who are addressing their own situation and not developing a universal
51 R*/."($!./ F*0(!(+0
This school of thought emphasi/es gender differences.
They recogni/e that women)s attributes result in a distinctive feminine
understanding of the world that is different of that of men.
Their focus is on women)s reproductive role and the nurturing relationship that
it has encouraged. These feminists argue that there are genuine and relevant
differences between men and women, which should be celebrated.
,n the ma"or relational feminist 4arole Filligan develops the idea of 2ethic of
&he argues women are more li-ely than men to privilege concrete
relationships over abstract rights, and thus promote the values of care and
connection. To her, women are more relational and contextual in moral
reasoning in contrast to the more universal and abstract reasoning of men.
obin #est argues that liberal theory and critical theory are essentially
masculine in that they start at a 2male3 human being. &he contrast saying that
human beings are the underpinning relational or cultural feminism who is
grounded in women)s potential for physical, material connection to human
@ennifer Bedels-y a 4anadian Eegal +hilosopher argues that rights should not be
construed in an adversarial manner, but in a way that affirms the relationship
that underpins the rights.
&he challenges the liberal division between public and private and argues they
should extract legislation to intervene in the relations between women and
men to protect women against violence. &he points that one of the defense of
consent and the sub"ective requirement of men)s rea in the law on rape is
males) perspective, his understanding or lac- of it is privileged over women)s
experience of violent harm.
1artha 1inow argues that problems of differences seemed intractable because
differences are thought to inhere in the 9different) individual.
!ifferences are a product of social construction and that the law should
address differences by helping to reconstruct relationships to accommodate
differences within a social context.
This group see-s to expose the gendered nature of law and advocate for
reforms. They do not see- to replace 9masculine) context of law with a
9feminine) one but see- humanist "urisprudence to pay attention to values and
experiences of women and men.
Cillans*c in a different "oice!!(19.( p'(/)
est *R !Burisprudence and 1ender!!(19.. p&1D&/)
1. #omen)s different voices are too bound up with oppression to have any
positive independent feminine meaning.
7. *ts essentialist in nature, women oppressions are different. This gave rise
to critical race feminism.
1 C#("('./ F*0(!(+" T)*$#2
This school of thought emphasi/ed on the race and essentialism in Feminist
Eegal Theory. 1ost feminists rely on essentialism i.e. the notion that a unitary,
9essential) women)s experience can be isolated and described independently of
race, class sexual orientation and other realities of experience.
The result of which is not only that some voices are silenced in order to
privilege others, but that the voices silenced by the mainstream legal voice of
the people among them, the voice of the blac- women.
This raises a problem because.
1. The experiences of blac- women have been ignored both in feminist theory
and in legal theory. Fender essentialism does nothing to address this problem.
7. 4ontemporary legal theory needs less abstraction and not simply a different
sort of obstruction, the Feminist Eegal Theory should challenge not only laws)
contents but its tendency to privilege the abstract and unitary voice.
@ust as law itself, in trying to spea- for all persons, ends up silencing those
without power, Feminist legal theory is in danger of silencing those who have
traditionally been -ept from spea-ing or those who have been ignored when
they spo-e i.e. the blac- woman. The steps to avoiding this danger are.
i. Five up the dream of gender essentialism.
ii. %se racial critique to attac- gender essentialism in Feminist legal theory.
iii. 4ategori/ation to be explicitly tentative, relational and unstable.
This does not however mean that every experience is unique and no categories
of generali/ation exist at all.
&ince the beginning of feminist movement, blac- women have been arguing
that their experience calls into question the notion of a unitary 9women)s
*n the first wave of the feminist movement, the blac- women reali/ed that
white leaders intended to ta-e neither issues of racial oppression nor blac-
women themselves seriously, thus presented political alliances between blac-
and white women.
Mackinnon C < :o5ards a feminist t2eory of t2e state(19.9)
*n the second wave blac- women still spea- loudly and persistently and at many
levels their voices have begun to be heard, feminist recogni/ed adopted the
notion of multiple consciousnesses as appropriate to describe a world in which
people are oppressed not only on the basis of gender but also race, class and
sexual orientation.
*t)s generally assumed by feminist legal theory that in the dominant culture, it
is mostly the white, straight forward and socio0economically privilege women
who spea- for all women thus the phenomenon of 2white solipsism.3
The problem is that feminist theory has confused the condition of one group of
women with the condition of all of them, generali/ing that.
i. #omen can be tal-ed about as women.
ii. #omen can be oppressed as women.
iii. Fender can be isolated from other elements of identity.
iv. #omen)s situations can be contrasted to men)s.
v. elations between men and women can be compared to relations
between oppressors and the oppressed group.
Feminist essentiality pares the way for unconscious racism. This is because
those who produce stories of a woman are often white women and would want
to ma-e sure they appear in the story thus decide what to or not to go into the
#hy is feminist essentialism so persistentG
1. 'ssentialism is intellectually convenient.
7. 'ssentialism carries with it important emotional and political payoffs.
;. 'ssentialist often appears especially to the white woman as the only
alternative to chaos.
&o as long as feminist continue to search for gender and racial essences, blac-
women will always be at the bottom of a hierarchy of oppression.
?1 P$+" M$%*#! F*0(!(+0
They are interested in the construction of individual identity or the sub"ect,
which it views as a product of culture, history, language social practice and the
They re"ect the idea of a traditional truth or essence. Any truth or meaning is
neither pre0existing nor certain. it is constructed through language and action.
They stress the uncertain nature of things and the diversity and plurality of
The re"ected the universal classification of women, they argued that the idea
of a woman is neither stable nor fixed and cannot be described solely in
relation to men or in terms of 9common) experiences.
They emphasi/e on differences within and among women rather than between
men and women. They explore how different images or changing identities of
women are the products of law and legal discourse. To them law is one range of
practices through which gender is acquired and gender differences established.
4arol &mart argues how law 9operates as a claim to power in that it embodies a
claim to a superior and unified field of -nowledge.) '.g. in rape trials, the
presence or absence of consent discounts the complexity of and is irrelevant to
women)s experience of abuse.
They do engage the law to bring about social change and recogni/e the while
law does not hold the -ey to unloc- patriarchy. it provides a forum for
articulating alternative versions. The strategies from this theory are uncertain
as they see- equality for women through law by questioning recontextualising
and attempting to unsettle existing laws in a wide range of areas.
*t denies the possibility of critique because there is no universal truth to be
discovered and no matrix of domination.
@1 T)(#% 9$#/% F*0(!(+0
This is feminism in developing world and it)s impossible to describe in a single
They argue that oppression related to the colonial experience, particularly
racial, class, and ethnic oppression, has marginali/ed women in postcolonial
societies. They challenge the assumption that gender oppression is the primary
force of patriarchy
This is because the women have different experiences, races, class, cultures
and religions in the third world.
The common feature is that these regions were once occupied by the
colonialists or imperialists. They see- to understand race, class, gender as
specific processes of domination e.g. if we dissolve the category of race, it)s
difficult to claim the experience of racism, for a blac- woman in the third
world racism exists as a form of domination and oppression.
91 A-#('.! F*0(!(+" T)*$#(*+
#omen in Africa have played a great role in struggle for liberation from the
colonialist. After independence the women)s movement were depolitici/ed, as
initially they were used to advance ideologies of a particular ruling party.
They were challenging colonialism and class oppressions. They argued we
needed a theory to explain our oppression and this must be informed by
intensive research that taxes into consideration the class, religion and cultural
differences among African women.
>owever, because of lac- of funding no much research has been carried out,
this is because most African states are not ta-ing the initiative or rule in gender
*n most African countries gender policy or planning has been more influenced
by the feminist activism and intellectual activism.
101 B/.'A -*0(!(+0
:lac- feminism argues that sexism, class oppression, and racism are
inextricably bound together. Forms of feminism that strive to overcome sexism
and class oppression but ignore race can discriminate against many people,
including women, through racial bias. The 4ombahee iver 4ollective argued in
19A< that the liberation of blac- women entails freedom for all people, since it
would require the end of racism, sexism, and class oppression
,ne of the theories that evolved out of this movement was Alice #al-er)s
#omanism. *t emerged after the early feminist movements that were led
specifically by white women who advocated social changes such as woman)s
suffrage. These movements were largely white
middle0class movements and had generally ignored oppression based on racism
and classism.
Alice #al-er and other #omanists pointed out that blac- woman experienced
a different and more intense -ind of oppression from that of white women.
Angela !avis was one of the first people who articulated an argument centered
on the intersection of race, gender, and class in her boo-, Women, Race, and
Class. 5imberley 4renshaw, a prominent feminist law theorist, gave the idea
the name intersectionality while discussing identify politics in her essay,
I1apping the 1argins6 *ntersectionality, *dentity +olitics and Jiolence Against
#omen of 4olorI.
*n conclusion, feminism contributes to an analysis of human condition in which
emphasis is placed on how human actors see- to come to terms with their
immediate circumstances and problems. The categori/ation is however not
exhaustive because many scholars loo- at or refer the theories differently.
:2e Combahee River Collective 5as a Black feminist les7ian or1aniEation acti"e in Boston from 19&-
to 19.3
M./* #*.'"($! "$ -*0(!(+0
The relationship between men and feminism has been complex. 1en have
ta-en part in significant responses to feminism in each HwaveH of the movement.
There have been positive and negative reactions and responses, depending on
the individual man and the social context of the time.
These responses have
varied from pro0 feminism to masculism to anti0feminism. *n the twenty0first
century new reactions to feminist ideologies have emerged including a
generation of male scholars involved in gender studies, and also men)s rights
activists who promote male equality.
A number of feminist writers maintain that identifying as a feminist is the
strongest stand men can ta-e in the struggle against sexism. They have argued
that men should be allowed, or even be encouraged, to participate in the
feminist movement. ,ther female feminists argue that men cannot be
feminists simply because they are not women. They maintain that men are
granted inherent privileges that prevent them from identifying with feminist
struggles, thus ma-ing it impossible for them to identify with feminists.
+ro feminism is the support of feminism without implying that the supporter is
a member of the feminist movement.
The term is most often used in
reference to men who are actively supportive of feminism and of efforts to
bring about gender equality. The activities of pro0feminist menHs
groups include anti0violence wor- with boys and young men in schools, offering
sexual harassment wor-shops in wor-places, running community education
campaigns, and counseling male perpetrators of violence.
+ro0feminist men also are involved in menHs health, activism against
pornography including anti0pornography legislation, men studies, and the
development of gender equity curricula in schools. This wor- is sometimes in
collaboration with feminists and womenHs services, such as domestic violence
and rape crisis centers. &ome activists of both genders will not refer to men as
IfeministsI at all, and will refer to all pro0feminist men as Ipro0feministsI
Anti0feminism is opposition to feminism in some or all of its forms
. 1any anti0
feminist proponents say the feminist movement has achieved its aims and now
see-s higher status for women than for men.
#riters have been labeled Ianti0feministsI by feminists. They argue that in this
way the term Ianti0feministI is used to silence academic debate about
feminism. 1arriage rights advocates critici/e feminists li-e &heila 4ronan who
ta-e the view that marriage constitutes slavery for women, and that freedom
for women cannot be won without the abolition of marriage.
The issue as to whether the women)s movement in 5enya can be termed as a
feminist movement is a debatable issue and is determined by ones
understanding and appreciation of what feminism is. *n 5enya feminists are
many times referred to as women)s rights activists.
#hat is not in issue is the fact that the 5enyan woman "ust li-e her
counterparts from the other parts of the worlds has suffered discrimination in
various aspects of their lives.
Advocates of women)s rights have concentrated on exposing and explaining the
gendered nature of law and revealing how gender is both ignored and enshrined
in legal theory and practice. The argument has been that law boo-s should
reflect and respond to women)s lives and the standard approach has been to
start with an understanding of the experiences of 5enyan women and integrate
the experiences into the legal framewor-.
These feminists engage with the law as is it as well as it ought to be and
ultimately see-s to have law as a tool of social change.
*n 5enya there is no single perspective or school that can be said to be
predominant over the other schools of thought. 5enyan feminists can be said to
have applied various theories to their wor- in addressing women)s issues as
L(3*#./ -*0(!(+0
@ust as the other liberal feminist in other parts of the world the emphasis has
been on the core principals of freedom of choice, individual rights, non
discrimination and equality of opportunity. This school of thought is premised
on the fact and belief that men and women are the same and are theoretically
able to do same things.
This school of thought further believes that gender roles and gender
differences are a result of sociali/ation.
The argument is that such sociali/ation has built over time and is now
embedded in our cultures and they also manifest themselves in the content and
the application of our laws, and that this gender bias to be removed there must
be action geared towards eradicating the same using education, law reform
and litigation. The aspiration here is to have men and women receive equal
treatment in and by the law and thus to be equally placed at all levels of
The 5enyan constitution
actually is in agreement with this position and at
section C7 tal-s about freedom from discrimination and discriminatory laws.
>owever it is important to note that even though the constitution has a
position on non discriminatory provisions8 laws, the said constitution in itself
has provisions that are discriminatory against women for example the sections
on citi/enship
does not treat men and women equally and neither does it
treat children born to foreign spouses the same.
Further despite section ; of the 4onstitution providing that 2KK if any other
law is inconsistent with this constitution this constitution shall prevail and
other law to that e!tent shall to the e!tent of the inconsistency be void
#hile this is what the constitution provides, the true position is that in 5enya
there are a number of discriminatory laws against women that are still in
Constitution of )enya
sections 93and 91 of t2e constitution
operation despite what the constitution says, for example the Eaw of
&uccession Act
has two provisions that are very discriminatory towards women
1. &ection ;= on life interest given to women while men get absolute
interest in the estate of their spouses.
7. &ection ;9 that gives priority to fathers to inherit the estates of their
children and the mother can only inherit the estate if father are dead.
*n practice women have also been given a raw deal even where there is no law,
for example
1. #hy is it mandatory to indicate whether you are wife of someone of
daughter of someone when registering a business nameG 4an)t a woman
be a person in her own rightG
7. Eegal documents such as a marriage certificates have no provisions for a
mother to sign and only father)s sign on behalf of their children, this is
in total disregard the fact that in 5enya the number of single parents
with women as the sole parents is on the rise. The big question is who
signs a marriage certificate when there is no father.
;. Transfer of stoc-s 8shares in filling in these documents it is clearly
indicate that in the case of a woman she must indicate her marital
status. The question is how does marital status affects ones right to
transfer shares or stoc-.
M.#8(+" .!% +$'(./ -*0(!(+0
1arxist feminists argue that class is a ma"or source of fragmentation and power
and oppression in the society. Fender oppression is seen as a dimension of class
power rather than constituting an autonomous basis for subordination.
Cap 163 0a5s of )enya
The arguments among 5enya women is not far from this argument in that
women)s rights are basically seen as an 2elite women)s3 issue and which
women especially who may be considered poor and from the rural areas do not
identify with. For example most rural women support the idea of being married
in a polygamous marriage
because this means more labour and more farm
produce and there is a belief that monogamy is selfish and are only educated
women who advocate foe the same.
&ocialist feminists as you -now resisted the idea that class was the sole source
of gender oppression, for social feminists) capitalism and patriarchy combined
to explain gender oppression. The group was particularly interested in issues
relating to the wor- place such as employment issues. +atriarchy is seen as the
main cause of women)s rights violation for example women were not allowed to
own property in their own names or inherit property. At the wor-place women
were only allowed to do certain "obs such as being secretaries and nurses and
were not allowed to underta-e technical "obs that were only reserved for men,
and this meant that they earned less than women and as such dependent on
their male relativesLfather, husbands or brotherM for survival.
To address economic empowerment the Fovernment has introduced initiatives
such as the women)s fund, reduced cut off mar- for girls while "oining
university to try to address the class oppression as propounded by social
feminists and further the concern of oppression at the wor- place was
addressed by the new labour laws that have outlawed discrimination on the
basis of sex among other grounds.
and 6
Co"ernment report to C%D< committee
As discussed earlier this arose when liberalism was deemed to have failed to
address and improve the situation of women. These feminists focus mostly on
subordination in the private sphere and believe that sex inequality is at the
centre of women)s subordination. They list the following as sex discrimination6
1. rape laws
7. abortion laws
;. sexual harassment at the wor- place
<. pornographyLsome laws permit pornography as a freedom of expression
issue yet pornography harms womenM
They argue that the social power of men over women extend through laws that
purport to protect women as part of the community but in real essence do not
do so. For example for a long time 5enya there was this section in the criminal
procedure code that required corroboration in rape cases. &imilar to the other
schools of feminist thought they believe that social change comes through
engaging with the law. L*t is worthwhile to note that the section was
subsequently removed and laws dealing with sexual offences enactedM.
This group emphasi/es gender difference and they see- to expose the gendered
nature of law and advocate for conceptual and doctrinal reform. *n 5enya this
issue of gender differences is especially highlighted in cases of division of
matrimonial property, where it has been argued that the law should ta-e into
account the nature and role of women when deciding on cases of matrimonial
property. *t has been argued that non monetary contribution to acquisition of
property should be ta-en into account when deciding such cases.
>owever as we all -now in 'charia vs. 'charia
the 4ourt of Appeal made a
decision to the effect that only financial contribution is ta-en into account in
Ci"il <ppeal Fum7er &8 of (331G;eter M7uru %c2aria "s' ;riscilla %c2ariaH
matrimonial property case. To date parliament has failed to enact laws to
address the issue of division of property though there is a current bill pending
and we hence still rely on 1arried #omen)s +roperty Act of 1CCA
*n 5enya there is no following to a particular school of feminists) theories
however the common feature in women)s rights activist is that they believe
that women empowerment will come through legal reforms, education and
some affirmative action. *t is clear though that women rights activists or
feminist as other may want to refer to them have achieved quite a lot in terms
of legal reforms and policy changes even though there still remains a lot to be
done for women to en"oy equal rights as men.
%n1lis2 0a5 7ut since repealed