‘Women are different from work forces, but the extent to which such differences have legal relevancy is non ever clear’ ( George Monti ) .
Critically discuss the above statement.
There are three chief strands of feminist idea: broad feminism, extremist feminism and difference feminism. What unites these different strands is their effort to expose the alleged patriarchal nature of society. One affair that divides these different strands is their several positions on the function of the jurisprudence in underpinning sexist power constructions, and this division is fueled mostly by alternate theories on the being and extent of gender difference. In this essay, I shall analyze the several attacks of the three chief strands of feminism to the jurisprudence in order to detect how gender differences can hold legal relevancy harmonizing to these different attacks.
Harmonizing to Olsen, Western thought has long been pervaded by a series of ‘binary dualisms’ which influence societal attitudes towards, amongst other things, the jurisprudence. These dualisms consist of braces of words such as objective/subjective, rational/irrational, active/passive, thought/feeling, abstract/contextualised, personal/impersonal and so on. These dualisms can be thought of as both hierarchised and sexualised: hierarchised in the sense that the first halves of the braces ( nonsubjective, rational etc ) are thought of by society as superior to the 2nd halves of the braces ( subjective, irrational etc ) , and sexualised in the sense that the first halves of the braces are thought to be masculine, the 2nd halves feminine.
The several attitudes of the different strands of feminism towards Olsen’s dualisms are informative of the differing positions within feminism on the relationship between jurisprudence and gender difference. Broad women’s rightists accept the hierarchisation of the dualisms, but non the sexualisation: therefore, while they accept that, for illustration, it is better to be nonsubjective than subjective, they do non accept that work forces are more nonsubjective than adult females. Extremist women’s rightists, on other manus, accept the sexualisation of the dualisms, but seek to change by reversal the ratings by, for illustration, reasoning that it is better to be subjective than nonsubjective. So here a clear difference emerges: broad women’s rightists regard the sexes as basically the same, whereas extremist women’s rightists embrace an indispensable difference. Furthermore, extremist women’s rightists see jurisprudence as enshrining the masculine sides of the dualisms, and hence argue that the jurisprudence is, as such, inherently male chauvinist.
Naffine has built upon Olsen’s work in order to cast visible radiation on some of the legal deductions of the binary dualisms. Naffine argues that the traditional methods of learning jurisprudence enshrine the masculine halves of the dualisms. These traditional methods include the abstract and decontextualised nature of law’s supposed topics: ‘A injures B, B sues C’ being the authoritative illustration. Questions associating to the power of persons are non on the docket, and the jurisprudence is hence able to keep an visual aspect of neutrality despite being implicitly masculine.
One clear illustration of the legal relevancy of a gender difference is that of gestation. Feminists disagree over the proper manner to depict the law’s attitude towards pregnant adult females. This dissension is illustrated by the instance ofWebb V EMO Cargo ( UK ) Ltd[ 1993 ] ICR 175, in which Lord Keith equated gestation with unwellness in order to happen that the pregnant claimant was non treated unfavorably ( by holding her employment terminated due to her gestation ) compared to a fanciful male opposite number who was badly utilizing the ‘comparator’ demand in subdivision 5 ( 3 ) of the Sex Discrimination Act 1975. Extremist women’s rightists useWebbas a springboard to knock broad feminists’ call for formal equality ; they argue that formal equality is nonmeaningful if favoritism ( in this instance, the sexist attitude of the bench ) can conceal behind a head covering of neutrality ( in this instance, the Sex Discrimination Act 1975 ) .
For extremist women’s rightists, formal legal equality is nonmeaningful given that the sexes are basically different ( gestation being a authoritative illustration ) . Work force and adult females need hence to be treated otherwise ; non making so would be every bit absurd as handling handicapped people the same as the able-bodied by pretermiting to supply to wheelchair inclines at public edifices. Harmonizing to MacKinnon, because sexes are non every bit powerful, formal equality before the jurisprudence ‘equates substantial impotence with substantial power, and calls handling these the same “equality.” ’
Difference women’s rightists portion the position that there is an indispensable difference between work forces and adult females which the jurisprudence obscures to the latter’s disadvantage. They besides portion the position that it is impossible to suit gender differences within the broad theoretical account. They focus on the law’s contemplation of pre-legal sexual difference and its function in building, underpinning and keeping sexual difference. Difference women’s rightists see the substance of jurisprudence as implicitly reflecting a masculine position. Examples of this include the ‘reasonable man’ in the jurisprudence of civil wrong, who is imbued with male features such as the ‘customary phlegm’ one is expected to demo in the face of injury ( seeBourhill v Young[ 1943 ] AC 42 ) . Legal methods, such as the adversarial system, are besides masculine in the sense that they reflect the male halves of Olsen’s dualisms by being based on thoughts such as, in the judicial proceeding illustration, competition between abstracted peers who are presumed to be equal.
In decision, women’s rightists have non merely differ over the extent to which sexual differences have legal relevancy ; they have besides disagreed over whether any such sexual difference exists in the first topographic point. The latter dissension greatly influences the extent of the former. Broad women’s rightists have been to a great extent criticised by extremist and difference women’s rightists for cleaving to the thought that liberalism can take to equality for adult females when the really thoughts of liberalism – formal equality and individuality – are an bete noire to the truth that adult females are different and must be treated as such for their true value to be recognised. Equally, nevertheless, extremist and difference women’s rightists have been criticised for encompassing the thought of gender difference, for in making so, they have been guilty of essentialism: of seeing biological science as the beginning of female subjugation, intending that it is pre-social and hence immune to political alteration. So there are jobs built-in in either rejecting or accepting gender difference. Modern women’s rightists face the challenge of, amongst other things, accommodating these theoretical differences within a coherent model.