Feminist jurisprudence

During the recent decades a wide feminist approach can be discerned in the legal system. Feminists are criticizing law and they are trying to alter things by proposing new ways of dealing with legal matters. They believe that by releasing their thoughts into our sociopolitical environment they will bring people somewhat closer to creating a legal system in which the interests of all persons are indeed regarded with equal respect and consideration.

However many times a feminist legal point of view tends to be self-contradictory, in the way that it supports the reformation of an idea at first by suggesting equality for instance, but on the other hand it seems to annul its own arguments. A feminist view often implies that women want to replace the dominant male party in law, and act exactly like it. Therefore, a question is emerging: What is the feminist jurisprudence? Equal rights or neo-paternalism1? Feminist activism has also had a major impact on many areas of the law, including rape, self-defence, domestic violence, and such new legal categories as sexual harassment.

However, the ideology of legal feminism today goes far beyond the original and widely supported goal of equal treatment for both sexes. The new agenda is to redistribute power from the "dominant class" (men) to the "subordinate class" (women), and such key concepts of Western jurisprudence as judicial neutrality and individual rights are declared2. Courts should resist efforts to limit individual rights just to protect women as a class, and reaffirm the fundamental principle in harmony with the classical liberal origins of the movement for women's rights: equality before the law regardless of gender.

Carol Smart3 expresses the idea that "feminist socio-legal theory faces another difficulty in as much as the tension that has always existed around the issue of whether to try to "use" law for "women" has taken on a new shape. This tension traditionally used to take the form of an assertion that law, being an epiphenomenal effect of patriarchy, could hardly be used to dismantle the said patriarchy.

Attractive and concise as this may sound, we now recognize that is both an oversimplification and a route to despair, given that considering everything as an effect of a monolithic patriarchy rendered feminism itself little more than a false perception at best, or a device for nourishing patriarchy at worst". Feminism can be roughly defined as a movement that seeks to enhance the quality of women's lives by impacting the norms and moves of a society based on male dominance and subsequent female subordination.

The means of change in the work place, politically, and domestically. Women have been trying to prove to the male dominant world that they are equal. They can perform and complete any tasks equal, or in some cases better than man. Feminism has changed the definition of men in many ways. In the early and mid 20th century some women were starting to be brave and take a stand for themselves. The beginnings of feminism were starting to take its massive role in society. One of the major cornerstones of the democratic system we enjoy in Western democracies is the rule of law.

Our legal systems are based on principles such as individual rights, equal treatment for all, and objective standards of proof. It is already well-known that "positive action" violates the principle of individual rights in favour of group rights. There is also nowadays a theory, actually a feminist legal theory, which seeks to disembowel the foundations of our legal system, the neutrality of the courts. The ideology of feminist jurisprudence today goes far beyond dismantling legal barriers which, in the past, may have denied women equal opportunity.

Contemporary feminism estimates that the prevailing culture is "patriarchal", i. e. a male-dominated social structure, and the feminist agenda is not equal treatment for both sexes but the redistribution of power from the "dominant class" (men) to the "subordinate class" (women). Feminists claim one must discard the concepts of judicial fairness and traditional ideas of rights and justice, because these maintain male dominance. These principles must now be replaced by a feminist philosophy and jurisprudence premised on "connections between persons".

Law must be used to change the distribution of power; this requires not equal treatment but "an unbalanced approach that adopts the perspective of the less powerful group with the specific goal of fair power sharing among different groups. You will notice the illogicality of the feminist position. On the one hand they claim that there are no differences between the sexes and that any difference in outcomes is the result of discrimination, and on the other hand they claim that workplace teasing is comprehended differently by men and women. One wonders how academics in tolerate the contradictions in feminist theory.

At the same time as feminists claim men and women are the same, they also proclaim that women are different from men because they are better, and if women held the positions of power we would have a more caring and compassionate world. It is absurd to argue that there are no differences between the sexes but that only men are effective in gaining power and retaining it. However, feminists need to hold both doctrines at the one time: if men and women are different, then the traditional division of sex roles and the traditional family is a natural development.

But if men and women are identical, i.e. men as a group are not oppressors, women would lose their claim to disadvantaged victim status, so the paradox is accepted: men and women are identical but all men are oppressors (and usually rapists too) while women are the oppressed. This brings us back to the legal question – should society and legislation treat men and women as identical or as different? Feminists are not at all fazed by such questions – Alison Jagger6, writes in an essay that "feminists should insist on having it both ways, for instance: Feminists should embrace both horns of this dilemma….

They should use the elocution of equality in situations where women's interests clearly are being damaged by being treated either differently from or identically with men". To those who, still subscribing to rationality, sorrowfully claim that one cannot have it both ways, that men are either different from or identical to women, but to insist on both is against reason, the feminist angry reply is that rationality or reason is a male construct anyway, or as Ms, Jagger would say "it is preferable to live daily with contradictions".

Thus feminism has gotten rid not only of much of our legal system, but of rationality too. Rationality is the foundation of Western civilization, science and development. Feminists are not too much in love with Western civilization anyway, believing that it is little more than a white, male patriarchy, keeping women under oppression. They yearn for a mythical Amazonian Eden where women were warriors and apparently men looked after the babies. However, there are some women behaving in a completely different manner.

For instance some demoralized women, so passive that they are unable to even leave their abusers and seek help at the nearest police station or refuge at a Church shelter. This picture is quite contradictory to the confident, forceful image feminists want women to bring forth. If logic is regarded as a patriarchal construct, it is hardly surprising that feminism is so full of contradictions. However, most of the women do not want to live in a world based on the assumption that most sexual intercourse is rape and the presumption that most men are guilty.

Men are not enemies- men are fathers, husbands, brothers and sons. They are also friends, and far from being involved in a conspiracy to oppress women, men have invented all of the labour-saving devices – washing machines, refrigerators, microwave ovens- that have freed women from hard work and given them, including unfortunately feminists, the time and energy to be involved in such pursuits as jurisprudence and the law. Without fear of contradiction one can successfully summarize the feminist philosophy, as a progressively forward-looking movement, and as an evolving, large amount of openly pro-feminine theories.

Is feminism a harmful ideology? There is a belief that the two central moral issues to this question are the following: (1) Is it immoral to infringe upon individual liberty (even if some other good can come of it)? (2) Is it immoral to discriminate based on sex (even if there are native differences, which are relevant to the situation)? What makes these clearly moral issues, as opposed to legal, religious, or socio-political issues? These are distinctly moral issues for a few reasons.

At first, answers to these questions require normal statements (yes it is immoral, or no it isn't immoral to infringe… ) which express value judgements. These statements can not be supported by empirical evidence. In other words, they are not subject to verification by running experiments, or through observation. Secondly, these answers describe standards of human conduct, which apply equally to everyone8. Lastly, these judgements for the most part are not laid down by authoritative bodies. What is the open-minded position concerning the enforcement of morality?

The position concerning the enforcement of morals holds freedom as the most important value in cases of victimless crime. The liberal believes that it is cruel and unjust for authoritative bodies to enforce community moral standards for victimless crime because of the necessary restraint it puts on individual civil liberties. And there is, of course, the normative ethics10 which is a branch of ethics attempting to clarify how humans should live their lives, and more specifically how to make moral decisions concerning one self and others, according to certain sets of values.