Ana Ben is a first year student in the department of Classics, interested in women’s rights, different cultures, international law and philosophy. Her hobbies include debating, going to art galleries and writing.
Although positive shifts have been made in recognising and dismantling the identity of the female, the pervasive nature of patriarchal norms in legal theory shows that there is a need for further change. Feminist philosophy of law identifies the influence of the patriarchy and masculinist norms on legal structures and demonstrates their effects on the material conditions of women, girls and those who may not conform to cisgender norms. The benefit of feminist legal philosophy therefore lies in its ability to identify and consequently dismantle the excessive presence of masculinist norms in the law. This in turn allows it to accommodate for the needs of the female population in a more personal manner.
The assessment of whether the differences between men and women should be taken into account in feminist legal philosophy allows for the articulation of what equality requires against the background of patriarchy. There is a range of differences between men and women which have existed, ranging from biological differences to historical differences. The purpose of feminist legal theory is to examine which of those differences should be taken into account when applying the law in order to ensure consistency within it. For instance, some feminist legal scholars argue that in order for procedural justice to be applied equally, historical differences and the systematic oppression of women, because of their sex, as can be gathered from their inability to vote or enter into legal contracts in the past, should be taken into account. The understanding of those historical issues, according to feminist philosophy acts as a step forward in dismantling oppressive legislation and institutions such as marriage. The fact that women who are subject to Shari’a law in various countries are unable to receive a fair share of the property from their father, and are subject to the conditions provided by their husband by divorce shows the existence of patriarchal norms in the legal system. The fact that the law states that “The wife in case of divorce has the right that the husband makes fair and reasonable provision for her future which includes her maintenance” is indicative of the fact that in many countries around the world, women are subject to norms which favour the male over the female, thus placing them in a disadvantageous position within the legal system. The presence of male dominance in the legal sphere indicates that although there have been advancements there is a need for the application of further pressure on oppressive institutions as well as the need to dismantle cultural norms which facilitate unfair treatment under the law. The presence of feminist legal theory and its efforts to dismantle historical oppression serves as a mechanism to improve the lives of women and girls around the globe.
Moreover, the fact that feminist jurisprudence examines the disproportionate burden placed on female asylum seekers is key in demonstrating how asylum or refugee policies may be based on male models of whatever constitutes persecutions, thus discounting forms of structural injustice that disproportionately burden women. The fact that survivors of sexual and gender-based violence are routinely being detained in the UK, for instance, is indicative of the fact although refugee women have been exposed to FGM as well as having been forced into prostitution and trafficking their vulnerabilities are not taken into account and they are nonetheless being detained. Additionally, the fact that survivors of sexual and gender based violence are being detained for significant amounts of time, ranging from 3-6 months, further supports the thesis regarding the vulnerabilities of refugee women as the result of the unfair burden placed on them by the male-dominated models. The dismantlement of those unfit policies via feminist jurisprudence enables for the establishment of more sufficient and sophisticated structures and social policies in order to ensure that refugee women are able to live a good life. The ability of the practice and its goal to dismantle and reform barriers to women’s participation in the public sphere is an additional example of the benefit of feminist legal theory in ensuring women’s ability to solidify their public presence and exercise their rights in an active manner.
The fact that feminist legal theory assesses and provides active debate on the commodification of the female body is a further indicator of its benefit in having the capacity to restructure social norms and institutions, such as people’s attitudes towards prostitution and the legislation surrounding it. Liberal theorists urge that if paid sex, paid surrogacy, paid gamete donation and the like can be achieved voluntarily, these are legitimate forms of economic opportunity. However, the presence of inherent male violence and economic dominance ensures the creation of a debate regarding frameworks which would not encroach on women’s economic opportunity but also ensure their safety. The Nordic Model of prostitution serves as an example of the model which seeks to resolve the above issue. The fact that the model seeks to decriminalise everyone who works as a prostitute in the market is indicative of an effective attempt to ensure the safety of women by providing them access to legal protection and services. Moreover, the prohibition of purchase of an individual for sex by making it a criminal offense as well as the attempt to strengthen legislation aimed at procuring, pimping and sex trafficking illustrates the attempt of the model to ensure the safety of those directly involved in the market by protecting them from potential abuse.
The existence of the Nordic Model therefore serves as the optimal solution due to the protection and discussion it generates in society. Firstly, it generates a progressive discussion surrounding women who fall into the market where their bodies are commodified, thus allowing for the enforcement of their protection by the law. Secondly, it allows individuals to question the existence of the market and how it treats already disadvantaged women due to it being tailored to meet patriarchal norms. The fact that survivors of the prostitution market such as Vednita Carter indicate the long-term exploitative nature of the market due to individuals either struggling to escape ( as she mentions in the narrative about her friend), or suffering from psychological and often physical damage is indicative of the need for additional pressures to be applied onto the market to ensure the safety of the women who fall into it. The existence of a sex trade network between African countries, Italy and Belgium, where the pressures applied onto the girls by the pimp in the form of a Juju ritual is further indicative for the need of the pressure provided by feminist legal theory in ensuring the protection of the most vulnerable in being able access safety and support after falling into the market.
Feminist legal theory has the potential to benefit society in the following ways. The fact that the theory, firstly, identifies that the legal practice and the institutions which stem from it are deeply patriarchal allows for the dismantlement of those elements. The debate following from the theory further allows for discussion to happen around progressive issues surrounding women, thus enabling for a more individual approach in ensuring that women are capable of retaining all of their rights as well ensuring their safety. By dismantling pervasive patriarchal ideals, feminist legal theory enables the long-term empowerment of women and reform of institutions to ensure their ability to adequately facilitate the needs of women and respond to women’s issues without the use of the patriarchal model.
Picture credit: Justice by Willard Leroy Metcalf (1899)