Investigating sex equality under Law through feminist jurisprudence - Part I

NOTE: We don't inhabit a fragmented reality. Nothing around us can be isolated from the catastrophic effects of the pandemic we're witnessing. All further posts on this blog will carry this caveat until there is some reasonable accountability established and substantial actions taken against the state's criminal abdication of responsibility. 

In this two part series I aim to analyse conceptions of sex equality under law and its discontents through a feminist jurisprudential lens. Part I lays down the foundation of feminist jurisprudence and elaborates on debates surrounding meaning of sex equality under law. Part II proceeds to use the framework thus developed to discuss and critically evaluate various Indian cases that involve a question of sex discrimination. Finally I trace the development of court’s reasoning in sex discrimination cases from a separate sphere theory approach to a transformative understanding of equality.

To question everything: Introduction to feminist jurisprudence

From Austin’s command theory that argues that Law is whatever the sovereign commands with a threat of sanction, to HLA Hart’s positive law theory that argues for separation of law and morality - the understanding of law has constantly been challenged. But no school of thought has challenged the very essence of ‘the law’ as much feminist jurisprudence has. The inability of law as a social tool to account for and accommodate female experience is at the core of this feminist enquiry.

There are no set definition of what is feminist jurisprudence, however there is an underlying commitment to question the inherent assumptions of the law. Catherine Mackinnon defines it as "an examination of the relationship between law and society from the point of view of all women”. The starting point of all feminist inquiry in law is to argue that objective reality is a myth. Feminist scholars argue that there is no such thing is an objective or un-gendered reality, the world around us and the institutions we have built (such as law) are premised on a male understanding of the world. The reasoning, logic and truth are all weapons used by men to institute rules, procedures, and traditions in a way that benefit men over women. The notion of objective, non-situated universal reality irrespective of whether believed by men or women is a by-product of exposition of the male’s dominant point of view. Thus law is a tool of social organisation based on domination.

Scholars argue that male is a social and political concept rather than a mere biological criteria. The standard of rationality, objectivity and universality even if not most men’s inherent outlook appears as subconsciously rational to them. Women are forced to define their own reality and existence in terms of such male reality. The male reality is systemic and hegemonic. The conceptions of what counts as truth is produced by those with power which in turn while cloaking itself in a myth of normativity and objectivity serves as a tool to distort world views and power relations in the interest of male.

Thus the feminist jurisprudential analysis of law is to ask the feminist questions. The core of feminist jurisprudential enquiry is shared by Critical Legal Studies in so far as both try to uncover the way in which institutions and norms such as law legitimises, distributes and preserves power in the interest of a particular section of society while marginalising the others. The school of thought is involved in seeing, describing and analysing the harms of patriarchal system of laws and to imagine a non-patriarchal world for women. However scholars have argued that since male-ness is a deeply entrenched epistemological concept that binds all genders, it is important to deconstruct the male vision episteme and ways of enquiry. Male centric legal scholarship is to law what law is to patriarchy, each reinforces the other. To be true to the vision of feminist jurisprudence, not only does one have to ask the right questions, but also limit the distortion of female experience. Feminist vision means understanding and implementing female experiences and methods of analysis and acknowledging that personal is political. It is important to note that feminist jurisprudence is not limited to formal inclusivity in the sense of being inclusive as one goes on (a pattern that sex discrimination law displays, something we will discuss later), but is inherently built on a politics of inclusion. It accounts for the lost narratives and methods of enquiry that may have been lost in the male analysis of law from a situated perspective. 

Therefore feminist scholars argue that the state itself with its institutions is male in so far as it was constituted by men and serves male interest by rules, processes, norms and tradition. It is built upon the subordination of women. In a way male power has become the state, and the state is male in so far as the male centred objectivity is the norm.

Feminist Enquiry into Sex equality

Having argued that law is made from an inherent male vision, and that the law thus in its operation entrenches gender subordination, feminist scholars have critically questioned conceptions of equality under sex discrimination law and have argued that a male vision standard is the implicit measure of equality under sex discrimination law.

Our notion of equality for a long time has been Aristotelian. Equality means to treat like persons alike, and unlike persons unlike. Under this conception of equality the state or sovereign has to show some difference to justify disparate treatment. Irrespective of the kind and origin of discrimination, as long as some differences could be pointed out between the sexes, it would justify disparate treatment in an Aristotelian sense of equality. This lack of clarity on which grounds of differences warrant disparate treatment have become the critical point of much legal debate and discussion.

Many of the earlier court decisions regarding sex discrimination read this positivist Aristotelian idea into dogmatic notions of differences between men and women, often characterised by the separate sphere theory. Under this theory women were to inhabit the private sphere of the household and men were to inhabit the outer public sphere. Women were to attend to children, the household and cater to the family’s needs while the man had to go out and earn money for the family. Thus such discriminatory conceptions of differences between the sexes were used by courts in earlier sex discrimination cases to argue for validity of disparate treatment since a classification based on stereotypical difference between sexes could validly imply such disparate treatment.

There are various schools of thought in feminist jurisprudence with respect to sex equality under law and much debate among them. One version of debate is sameness versus difference. The core disagreement is with respect to the real meaning of equality. Some feminists like Ruth Bader Ginsberg have argued for over the board equal treatment with no special rights. Whereas difference feminists argue for recognising and accommodating for differences between men and women and forming special laws for women that compensate them for their roles. Many radical feminists have argued that by engaging in a vocabulary of differences based on the mythical nature of objective reality and logic riddled with male vision epistemology, difference feminists in a way can be argued to concede to the anti-feminist logic of different and thus inferior.

The second version of this debate is differences versus domination. Difference feminists also argue that since there are fundamental differences between men and women therefore, the only root of discrimination of women is a male centric approach to law. Implicit in this argument is the belief that to ensure gender equality, one only needs to find the finite grounds of difference between men and women and then adjust the law accordingly. Scholars have criticised this tendency to classify and differentiate to ask for special rights by arguing that even if we employ sophisticated methods to arrive at these differences, “We only encourage the law's tendency to act upon a frozen slice of reality. In so doing, we participate in the underlying problem-the objectification of women”. They argue that not only do we need to accept differences as emergent and infinite but that this ‘incorporationism’ is built on the false belief in objectivity of law, that once these sexist laws are removed, we can achieve gender equality. Male supremacy is not a set of random irrationalities in an otherwise perfect law but a whole hegemonic system in itself. The solution is not to look for irrationalities and disparate treatment in enough cases. That would be akin to treating the symptom of the problem. The solution (as domination feminists like Catherine Mackinnon argue) is to focus on how law propagates domination, disadvantage and disempowerment.

Conclusion:

The foundational logic behind feminist jurisprudence is four fold. First, an instinctive distrust of the law as is. Second, to critically question the logic employed in sex equality law to reveal the male biases inherent in them. Third, to understand and analyse the effect of seemingly gender neutral laws. Fourth, to re-imagine the entirety of law as a mechanism separate from the status quo tool of gender subordination. Thus feminist jurisprudence is an integral tool when critically evaluating court decisions regarding sex discrimination and sex equality under law, which we will be dealing with in the next part of the series.