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Feminist Theory of law What is Law? From Whose Perspective?

Hart: Internal analysis: recognition of law Marx/Sociologist/Natural Lawyers: external analysis, explain the world Feminist: interpretative analysis: explain law to the feminist What is feminism? Interpretative analysis: invite us to examine law from a womans experience Rejects any grand theory or grand narrative To make sense of law by linking theory and practice Name those invisible, unthinkable but lived experience of women Must start with people in their social contexts

Slide 2 What is Law? The Feminists say - they have different schools/movements Liberalism Cultural Feminism Radical Feminism - will see how they develop - want to examine whether law is a product of a society fundamentally patriarchal society - Goal: undermine and ultimately to eliminate it Readings for these 4 weeks from Penner Feminism - Offers an account of social life and social hierarchies as fundamental that is predicated on sexual subordination and sex differences - Aims to develop an alternative theory of society and law grounded in the experience and viewpoint of women - Challenges theoretical and methodological framework - Present social and legal arrangements are rational but unjust law is rational, doesnt mean it is fair. I. Liberal Feminism Enlightenment, French Revolution, American Revolution Political movement in 18th century What is the contribution of French and Am Revolution to the development of politics and of law? Locke, Mill, Rousseau life, liberty, equality

Women should have the same legal rights and privileges as men principle of perfect equality (Mill)

John Mill - equality of life for women - perfect equality - system based on merits instead of sex or gender - e.g. vote, enter into professions e.g. suffrage, right to enter the professions Illinois law (1872) women could not practise law because Bradwell v. Illinois the paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother Aristotle (384-322 BC) the reason that women did not grow bald was because their nature was very similar to that of children Hegel (1770-1831) Men correspond to animals, while women correspond to plants because their development is more placid and the principle that underlies it is the rather vague unity of feeling.

Mary Wollstonecraft (1792) follower of Mill let women share the right shed grow more perfect when she was free if she was the first feminism, what is she advocating for? Asserting the rights which women in common with men ought to contend forLet woman share the rights and she will emulate the virtues of man: for she must grow more perfect when emancipated. Simone de Beauvoir important feminist thinking in modern times says that we always use man as a model women is incidental, non essential men is subject, absolute, she is the other For him she is sex- absolute sex, no less. She is defined and differentiated with reference to man and not he with reference to her; she is the incidental, the inessential as opposed to the essential. He is the Subject, he is the Absolute she is the Other from Second Sex (1949) Important Advancement Equal rights e.g. women to own property (19th century); equal pay for equal job as men (U.K. 1975); retirement age (?)

Cultural Feminism Criticism: reference point is man, the model is men Liberal Feminism: sameness as likeness Making women to be honorary men By reference to and in contrast with a normative standard fashioned for the treatment of males But Example: Bathrooms need of women are entirely different The Case of Pregnant Woman? What Kind of Comparison can we drawn? Is She Like a Pregnant Woman? What kind of Comparison can we drawn? - pregnant woman vs sick man - baby is not a kind of sickness, a process of procreation Criticism on Liberal Feminism By cultural feminism Women are biologically different in an important way Only stresses on formal equality or equal opportunity; debate should move from sex to gender Sex: bodily or biological Gender: socially constructed meaning of sex temperament and behaviour associated with different sexes is a social construct and culturally produced, is the product of learning expectation is build by our culture Gender is a social construct and culturally produced, is the product of learning Role of law in constituting social meanings of gender, If we dont follow the expectation, well be punished Focus on individuals but have missed

1. 2. 3. 4. 5. 6.

Cultural Fem: we are different, we need to understand we have different patterned outcomes. e.g. womens underrepresented in various occupations Underplays the extent to which social and political institutions shape individual preference. e.g. lack of child care service Have done nothing to counteract social forces of stereotyping Conceptions of freedom is meaningless without addressing power inequality e.g. pornography and free speech Has not addressed the public and private dichotomy e.g. domestic labor; child abuse; domestic violence Insistence on gender-neutrality is meaningless because sex-differentiation is significant


Formal equality political rights are of little value without addressing economic dependence of most women

(2003) 1 0 2025 obedient women

Study in the US 1940-2000 3 million households were interviewed Divorce rate in families without boys higher than 5% Same no. of girls vs. boys, higher than 10% Worse in China, Vietnam, Mexico, Columbia, more than 2-8 times With boys, men tend to stay at home More willing to get married G.Dahl and E. Moretti, The Demand for Sons: Evidence From Divorce, Fertility, and Shotgun Marriage

families with boys have lower divorce rate With boys, men tends to stay a home More willing to get married

HK Statistics 2005 45% of labour force are females, but only 26% of executive rankings are women Of our 60 Legco members, 11 are females On non-technical labour force, the median income for males is $7500 while for females are $3900 On labour force that earn $3000 or less, female constitutes 80% (HKEJ Nov. 15, 2006 at 29)

II. Cultural Feminism Cultural Feminism celebrates difference Need to recognize that women are different, We need to treasure value this difference Not equal pay for equal work But equal pay for equal value of work There are genuine differences between the sexes that are distinctively female contribution, at worst unrecognized, at best under-valued

Male value autonomy; women value connectedness e.g. pregnancy, breast-feeding, heterosexual intercourse How Different are Women from Men? In a Different Voice Carol Gilligan Heinz wife was seriously ill. He could not afford in buying a drug that would cure his wife. The pharmacy store refused to lower the price. Should Heinz steal the drug? Amy and Jake (both 11 years old) Jake: steal it: life is more valuable than property: morality is superior than law Amy: neither property nor law If stealing the drug, H would end up in jail, no one would take care of the wife Talk to the pharmacy or appeal to others for help Jake is confident that the judge would agree that stealing is right Amy is confident that a long enough conversation will do to persuade the pharmacy store owner

Man: black and white, two dimension Women: in terms of relationship, responsibility. What is Justice? Individualistic, rights, justice-based mode Holistic, responsibility based, relational or caring model Advocate Give values to womens work E.g. Does your mother work? E.g. in 2003, in the U.K. women earn 72% of mens pay Took 85 years for men and women to achieve pay parity 20,314 vs. 28, 065 annual salary No longer a mere issue of equal pay for equal work but equal pay for equal value of work

III. Radical Feminism Third school, more legalistic It says cultural and liberal miss the issue The issue is not sameness or difference but power and domination First wave: women as good as men Second wave: we should treasure the difference Radical Feminist: the underlying issue is power! Weve numb womens experience so bad that women will act comply with the expectation of men Law is a product/construct of male domination consciousness raising wherein women share their true experience so as to construct a specifically feminine point of view/discourse Criticism of others How come we dont take their NO seriously Women were presented as social group with particular interests e.g. family law, employment Sometimes as special treatment and sometimes asking for equal treatment Real issue is domination e.g. women can say no but it will not be taken seriously e.g. sexual harassment, pornography, rape and genocide Catherine MacKinnon Anti porn legislation, Genocide debate, systematic rape is a form of genocide Womens difference is not a cause for celebration but their source of misery Feminism Unmodified

male is a social and political concept, not a biological attribute Ask the role of the state and the law within our system The state is male, the law sees and treats women the way men see and treat women E.g. what counts as reason?

Catherine MacKinnon on Womens Experience Sexual harassment Domestic violence Rape Pornography Equality in work place Domestic Violence Womens reaction: Battered spouse syndrome? Defences available to murder or manslaughter Self-defence Provocation Insanity

women react in a different way put up with violence for 6 years strike back fatal

Definition of Rape Crimes Ordinance s.118 A man commits rape if (a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and (b) at that time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it. (Added 25 of 1978 s. 3) [cf. 1976 c. 82 s. 1(1) U.K.] Rape Rape by strangers, rape by husbands, by boyfriends or by someone you know Which is worse? Why is it worse? Who says that he knows or he is reckless subjective or objective standard? Mans perspective being looked at Mixture of sub and ob standard But strangely, in the ob standard, were looking at the man. Rape We assume gals under 16 cannot give consent We assume wife must give consent Which is worse? Raped by husband, boyfriends? It seems that the assumption is that raped by stranger is most horrible. In whose interest are we deciding which is more traumatizing? Men believe that it is less awful to be raped by someone one is close toBut women feel as much, if not more, traumatized In whose interest is it to believe that it is not so bad to be raped by someone who has fucked you before as by someone who has not? Whose Mind are We Examining? if a man honestly believes his victim to be consenting not guilty (R. v. Morgan 1976) What standard are we using? Subjective or objective? Is this justified? Why oscillating? Whose point of view are we considering? Sexual history of the victim is potentially relevant to her credibility in alleging rape consent how do we prove it? Always look for evidence of non-consent: signs of

struggle. Different women react differently Why dont we count dignitary harm? Analysis on Rape Different spheres of consent e.g. little girl, married women, prostitutes, girlfriends assume consent Dressed in a sexy way, with sex experience Law only regulates rape but do not prohibit it Look Around Us Rwanda, Hutu committed mass sexual atrocities against Tutsi in the 1994 genocide When batterers rape rather than beat Genocide: specified acts must be undertaken with intent to destroy a racial, ethnic, religious, or national group as such In Akayesu, International Criminal Tribunal for Rwanda rape as a crime against humanity is a physical invasion of a sexual nature committed on a person under circumstances which are coercive No need to show physical force but can be inherent in circumstances like armed conflict or military presence of threatening forces on an ethnic basis Is this Genocide? In War time, 20,000-70,000 women were raped in Yugoslavia in 1993 as a systematic tactic of war In Bosnia-Herzegovina alone, over 30,000 Muslim and Croatian girls and women were pregnant from mass rape Of the 100 Serbian run concentration camps, about 20 are solely rape/death camps for women and children Is this genocide? In ICTY, Furundzija , the commander in charge The Court focused on individuals consent or lack of it Concluded it was torture but not genocide, found K innocent of the situation Adopted a very individual decontextualized focus Court said torture, not genocide Muslim women react differently The women would commit suicide Got pregnant, no men would touch that women any more, They would not be considered muslim, or kuawitians, cos blood tainted. Argued: Because of culture, it is genocide What is Rape to Women? destroying a a people in these ways short of killing them all gives new dimension to the old view that rape is a fate worse than death In peace time,500,000 women were raped every year in the US Rape is fate worse than death If you rape a woman, whats the implication you sent?

Comfort Women or Mass Rape in War Time 1st msg, saw this in Africa 2nd msg, anyone would join him? Pornography What is it? Should we ban it? Indianapolis Anti-Pornography Ordinance What does it remind you of? (the following slides are provided by your seniors) Porn and rape are related Is pornography oppressive or liberating to women? Pornography vs. freedom of expression Conception is flawed, miss the issue of power and resources Womens right to speak or to be heard is systematically undermined by others right to speak We need to examine the value of this freedom http://www.boston.com/news/globe/ideas/articles/2005/03/06/porn_players/ Homosexual porn? Porn Up, Rape Down?? Professor Anthony Damato of Northwestern University Law School http://papers.ssrn.com/sol3/papers.cfm?abstract_id=913013 (June 23, 2006) Claims: community is safer with easy access to pornography (internet) In the U.S., incidence of rape declined 85% in the past 25 years

4 states with the lowest internet access had the highest increase in rape incidents (53% increase) between 1980 and 2004 4 states with the highest internet access, experienced largest decrease in rape incidents (27%) Possible reasons: get it out of their system; demystification of sex No evidence to establish a link between students exposure to pornography and any tendency to commit anti-social acts

An English professor wrote the words: "WOMAN WITHOUT HER MAN IS NOTHING" on the blackboard, and directed the students to punctuate it correctly .

The male students wrote: "Woman, WITHOUT HER MAN, is nothing." The female students wrote: "WOMAN!! WITHOUT HER, man is nothing!"