Newapproaches to the theory of law

Topic: Define and discuss the rise of two of the new approaches to the theory of law; feminism and postmodernism. What effects upon the legal system are these two approaches likely to have? To fully discuss the effect of feminism and postmodernism upon the legal system we must define each theory as it stands in relation to the law. Feminism can be best explained as "the support for the social equality of the sexes, leading to opposition to patriarchy (social organisation in which males dominate females) and sexism. "1 In concept and procedure feminism is highly variable.

Those who see themselves as feminists advocate differing levels of criticisms of patriarchy and advance according alternatives to the status quo. This is most certainly the case with those who advocate feminist legal theories and/or proffer changes or variations to our system of law Indeed, feminist legal theories are brought about by a range of feminists whose ideas are certainly not definable and clear cut in comparison to each other. As time changes so will each person's notion of feminism, the feminist movement, and the impact of each on our legal system.

The backdrop to feminism was the Age of Enlightenment and the Industrial Revolution which induced both economic and social changes in society in the late 18th, and the 19th centuries. 2 During the French Revolution women's groups stressed the need for "liberty, equality and fraternity," saying that these should apply to all persons regardless of gender. "3 In England in 1792 the first significant feminist writing, 'A Vindication of the Rights of Women' was written by Mary Wollstonecraft. 4

During the Industrial Revolution there was a scattered and erratic presence of feminist groups, however none of these seemed to gain enough momentum or strength to survive. In Europe powerful institutions like the Roman Catholic Church opposed the very notion of feminism believing it would destroy the patriarchal family. 5 In Great Britain and The United States of America primitive feminism was more fruitful. In 1848 the first women's rights convention was held at Seneca Falls, New York.

This convention was lead by Lucretia Coffin Mott and Elizabeth Cady Stanton, who along with the other 100 or so people present demanded the vote and equal rights. 7 In what eventually came to be an effect on the legal system through law reform, Elizabeth Stanton persuaded Senator Aaron Sargent to champion an amendment to the U. S. Constitution regarding women's suffrage. 8 This occurred first in 1878 and was reintroduced to the United States Congress each year until it was accepted in 1919. 9 A number of changes in the 2Oth century showed evolving progression from a feminist perspective.

After the Russian Revolution in 1917, and Mao Tse Tung coming to power in China in 1949 these communist regimes adopted social, economic and legal change in favour of women. 10 Both regimes "discouraged the patriarchal system and supported sexual equality, including birth control. "11 Undoubtedly we can attribute these changes to the social alterations which occurred within their societies at the time. Although these revisions occurred, most facets of communist society remained very primitive in comparison to the West, which at this time was still progressing more slowly in its movement away from the dominant patriarchal society.

Although the number of women employed in the western world increased substantially at the end of both World War One and World War Two, most females found themselves in low paid and low status jobs. These jobs were dominated by women and consisted of work such as teaching and clerical duties. In the United states by 1923 there had been an attempt to introduce an Equal Rights Amendment to the Constitution in order to remove social, economic and legal restrictions placed upon women generally. This did not succeed. However, it is apparent women were championing their own cause against legal and other restrictions placed upon them.

The struggle continues today. There was a revival of highly politicised feminism in the 1960's. This appeared to have far greater consequences on our legal system than any preceding feminist movement. This reemergence of strident feminism was born during a period of great social reform. The ambience of ideas, particularly in the West favoured a revitalised attack on discrimination and injustices which women had to confront daily. The major injustice and discrimination at this time appears to be gender role stereotyping. This set the stage for a large and concerted protest movement.

Women who were working, attending universities and moving away from traditional patriarchal imposed restrictions formed the front line for the true beginning of change for women. The law and its relevance to women was an obvious target. In 1961 in the United states there was a President's Commission on the status of women, which highlighted women's oppression. 12 Out of this and other similar official inquiries across the United States was born the National Organisation for Women. 13 Fundamentally, this group sought to "end legal and economic discrimination against women, particularly working women.

"14 This 'liberal' wing of the women's movement pursued equality with men in the eyes of the law. It is apparent that the pursuit of these objectives and subsequent efforts from inside the women's movement has had a profound effect on our legal system. We have seen changes in women's right to vote, the legalisation of abortion, the recognition of lesbian rights, the right of equal pay for equal work, the focus and changes to 'marital rape' laws, laws protecting women in family violence, and attitudinal changes allowing women to participate in political groups and other social organisations.

Although those under the 'feminist' banner generally support the idea of opposing patriarchy there are those who see the means to this end differently. Feminist groups include; liberal feminists, Marxist and socialist feminists, radical feminists, cultural feminists, eco-feminists, moderate feminists and many more. Where the operation of the legal-judicial framework within our society was once paternalistic toward women, it has at least evolved so women and their goals and position in society is acknowledged.