Legal policy applied to domestic relationships has the potential to promote equality between the sexes. However, there has been little inclination to engage in social engineering on this issue and, in fact; this is a general characteristic of English domestic relations law. ' Discuss. Across boundaries of time and culture there have always been unequal power relations between men and women and as the years roll on, each age and each society can be characterised by attempts made to establish equality between the sexes.
The construct of legal policy within the sphere of domestic relations has an obvious impact on the status of both the man and the woman in larger society as the crux of issues within domestic relations law lies within the home. It is here where children are raised, ideas are indoctrinated and basic male-female roles are instilled and propagated.
It would indeed be true to state that legal policy in this arena does have the potential to promote equality between the sexes as it has always had, and currently does, hold the power to foster, nurture and legitimate unequal relations within this sphere; the assumption being that if it can aid one extreme, it can also aid another. However, there are two subsequent questions to be asked from an acknowledgement of the law's ability to promote equality and the first deals with the extent to which legal policy can actually change the status quo in any given society.
If the law is seen as a reflection of social and cultural mores, the power to achieve equality of the sexes should then chiefly reside in the institutions which espouse those social and cultural beliefs and not law itself. Or, it could be said that it is only if the law works in tandem with these social institutions, each bolstering the other that change may come about. Thus, legal policy does have the power to promote gender equality – a telling choice of word.
It may promote it, but it is my opinion that it cannot succeed on its own in bringing about anything other than factual (as opposed to substantive) equality. To truly achieve gender equality in both the beliefs and actions of a populace, law and its neighbouring social institutions need to work together. The second question addresses the issue of equality and the search for a definition accepted by all.
Everyone desires a legal system which is based on, and which cultivates equality, but there are various concepts and variations to the term and dependent on the definition one endorses, the law may seem to be in differing stages of progress towards achieving its goal of gender equality. The divergence of thought is evidenced by the many strands of feminism, all of which tout different versions of equality.
Finally, the belief that there has been little inclination to engage in social engineering on the issue of sexual equality is another debatable subject whose point of discussion may also find itself partly dependent on one's personal definition of 'social engineering' as being an inherently pro-active deed or not. Attempts to retain the status quo as is, in the belief that men and women are already on equal standing, can be seen as an attempt at engineering society to remain as it is and thus, the lack of action speaks as clearly as an opposing positive action.
In discussing what the law could do to promote or even bring about equality between the sexes, I shall structure my essay around certain issues which provide ample examples of how legal policy can affect society, how the policy may be fostering inequality at present, the reasons behind any supposed reticence on the part of the law to change and what can be done to change it. These issues are abortion, the institution of marriage and the act of divorce and child custody. Domestic Relations Law as an Ideal Vehicle for the Promotion of Gender Equality
The family viewed as a microcosm of society makes it clear why legal policy relating to the family would be a model medium with which to promote gender equality – or indeed to promote any equality. Everyone is affected by domestic relations law and though it may be seen as a field whose power lies only within the private sphere, the individuals who comprise the family socialise, work and converse in the public sphere, carrying with them all the opinions formed within the home.
If one were to place in the average family a deep-rooted belief (or at the very least, acceptance) of the fact that the man is the bread-winner of the family and the woman the primary care-giver, enough so that a full role-reversal were to raise eyebrows, then the members of this average family can be expected to do nothing but transport this entrenched belief into the workplace, into national politics and to solidify its acceptance as nature and fact, through a strengthening of the cultural institutions that may have – in what could be termed a vicious cycle – propounded the view in the first place.
Gender Bias in the Legal System Gender bias arises from social and cultural assumptions as to the roles and expected behaviour of men and women. 1 It is manifested most in the decision-making process of the justice system where it is easy to rely on stereotypical ideas rather than an independent evaluation of individual facts. It can arise from misconceptions about the social and economic realities encountered by both sexes and issues may be viewed either from a male or female-dominated perspective within which the problems encountered by the opposite sex are belittled or viewed with scepticism.
When one says that the legal system is gender biased and cultivates sexual inequality, to deduce that judges and lawyers alike are misogynists or misandrists as the case may be, would be to demonise the system and its participants to the point of caricature. However, it must be said that the form of bias held within the legal system is just as worrying as outright discrimination. It is of the kind where the perpetrator is not aware of the injustice meted out but truly believes delusions held to be fact.
Most gender bias in the legal system takes this unconscious state and is based upon attitudes and stereotypes which are hard to prevent and correct. Nevertheless this must be stamped out as, whether inadvertently or not, they mould the development of the law and thus the treatment and portrayal of women and men in society at large. Abortion – Whose Decision? The abortion debate has always been an emotional one, imbued as the topic is with moral, social and human-rights based implications.
Advocates of the woman's right to choose perceive legal abortion – and not simply an abortion which is allowed only after the consent of two doctors, but one in which the woman holds the decision-making reins completely – as essential to the construction of gender equality. 2 Abortion, for 'pro-choice' supporters, provides the woman with the ability to enjoy the sexual freedom afforded to the man since the days of Adam and it flies in the face of the dominant view of a woman's appropriate role in society as mother.
However, for British proponents of the 'right to choose', the Abortion Act of 1967 is not all roses. The control that women seek still lies in the hands of the medical profession: to qualify for an abortion, a woman must be able to prove that having a baby would cause her or her family greater physical or mental stress than not having one. Thus, the English version of legal abortion has not granted to the woman the carte-blanche right that advocates desire and, within the Act at least, abortion is painted as a medical imperative rather than an individual right.
This conservative approach to abortion policy suggests that difficulty still lies in allowing, with no strings attached apart from time restraints, what may be seen as a wanton destruction of life; 'wanton' because the portrayal of the woman contemplating abortion is never one of rationality, maturity and control. Rather, as Sally Sheldon has identified, she is either selfish, immature and irrational or the helpless, down-trodden wife of a drunken, unemployed lout of a husband3.
These extreme portrayals make it easier for opponents of abortion to view the women concerned as set apart from the average female. Women seeking abortions are seen as deviations from the norm of the female as nurturer or at law, as women whose health dictates that they undergo a 'traumatic' and experience regardless of their desires. For both advocates and opponents of abortion, the putative father is a secondary – perhaps even a tertiary character.
He is brought out only when it suits individual causes, to play either the selfish male forcing abortion, or the distraught, loving man denied his child. However, some commentators have elevated him to the status of a major player in a political and legal debate, arguing that the current legal situation is inadequate: he has no legal rights and it is not required for him to be notified or entitled to participate in the decision to terminate a pregnancy or prevent termination. This it is argued, puts men and women on unequal footing, with the man at a disadvantage.
Women have reproductive rights whilst men have reproductive responsibilities. Though the current situation can be seen as formally unequal to men, given the biological reality of the situation, it is hard to see how the law can be changed so as to allow any other state of affairs. For the putative father to be given any type of paternal veto over a woman's decision to abort, would be to force the two into adversarial positions and more importantly, to give him authority over her body.