5 Feminist Legal Theory and Generation of Rights part II

Severyna Magill

Learning Aims:

By the end of this module you will have knowledge of branches of feminist theory not covered in the previous module such as, cultural feminism, radical feminism and Dalit feminism. The following module will be on black feminism within the USA. You will also have knowledge of theories that have developed the concepts of intersectional discrimination and highlight the experiences of women in specific groups. We will also explore what the theories represent and when they were developed.

Background:

In addition to the three generations of feminist legal theory covered in the previous module: equality feminism; difference feminism; and intersectional feminism, there are also other forms of feminism that have evolved simultaneously such as socialist feminism, black feminism, eco-feminism, post-structural feminism, and trans-feminism. There is also arguably a fourth wave of feminism happening now where women are demanding more rights over their own bodies such as personal lifestyle decisions free from judgment by society and the state regardless of how politically correct they may be. These decisions could include having freer lifestyle and sexual choices without interference from the state or society such as the choice to not marry, to not want to become a parent, to have open or polyamorous relationships, and to have more autonomy over their bodies. As this new generation of feminism argues for greater independence of women it has been referred to as ‘i-feminism.’

This module will explore three specific forms of feminism and their theories: cultural, radical and Dalit feminism. By the end of the module you will be more familiar with the need for multiple representations of feminism and how these are beneficial to the communities they represent.

Cultural Feminism:

Carol Gilligan’s writings on the “ethic of care”  and the “ethic of rights”  aimed to demonstrate that men and women think in different ways. She argues that men work on a system of rights, typically between two individuals who are of similar status whereas women have a system of care to understand and explain social relationships which are more complex. Gilligan used her experience as a psychiatrist to analyse social experiments with children to analyse their reactions and to give a basis to the theory of cultural feminism. She asked both boys and girls a hypothetical question to highlight sociological differences between men and women’s thinking and how men and women engage differently with both social relationships and the legal system.

The question was whether Heinz should steal a medicine that he couldn’t afford to buy from a chemist to cure his dying wife. The boy answered yes and the girl was less certain. The boy, justified his answers saying that “a human life is worth more than money.” In other words if the chemist had medicine that was unaffordable there was a right to access it (the property/asset) to save a life. He also reasoned that the crime of theft was lesser than the consequence of someone dying and that even if the case of theft went to court “the judge would probably think it was the right thing to do.”

When the girl answered she was less sure if there was a clear answer. Initially the girl feels a loan or borrowing the money for the drug is the best solution but “he really shouldn’t steal the drug.” Whilst explaining her answer the girl thought of potential consequences: “If he stole the drug, he might save his wife then, but if he did, he might have to go to jail, and then his wife might get sicker again, and he couldn’t get more of the drug, and it might not be good. So, they should really just talk it out and find some other way to make the money.”

Gilligan argued that girls and women engage with their immediate and extended society in a more holistic way than boys and men. She argues that girls and women are more concerned about how their actions will affect not only themselves and their friends/family/others in close proximity within a short period of time but also other people within society that may be affected over a longer period of time. This ‘different’ way of thinking affects how they also engage with the world around them and the legal system. The basis for cultural feminism is to develop a deeper understanding of the difference between the way men and women think about the concept of rights and to recognise that the current design of the legal system is inherently male.

The discussions in this generation consist of debates on how the ‘different voice’ of women, which consists of the importance of human relationships, and for the positive value of caring, can be better represented in law. Cultural feminism focuses on the identification and restoration of the point of view and qualities which have been deemed to be specific to women. Essentially it is a “standpoint” theory. It emphasizes the reduced position of women and allows them to make more complete and accurate accounts of society and women’s life in context to that which is more preferable, morally and scientifically, to those made by men.

The children in the study were also asked to define responsibility. The boy said that for him “responsibility means not doing what he wants because he is thinking of others” whereas for the girl it meant “doing what others are counting on her to do regardless of what she herself wants.” She concluded that men operate with a system of rights such as to not steal because someone is entitled to keep their property. If however someone had multiple assets and someone had no assets boys could justify taking one asset as it would be fairer distribution where each should have a right to some of the assets. Their arguments are therefore formed using an adversarial framework of two people with equal rights who can take from another with a reason –for example fairness. The girls interviewed had longer, more complicated answers. Their answers considered not only the two characters who had and/or needed assets but also those that could benefit and be negatively affected by any potential re-allocation of these assets and how this would affect a wider group of their dependents. Women therefore mostly speak the language of care, while men speak the language of rights.

Further Gilligan identifies that in the original study of the children’s answers the boy’s answer was valued more highly than the girl’s answer. The boy’s answer was credited as being more direct, straightforward, easy to understand and as demonstrating greater clarity. The girl’s answer was seen as being less clear, less relevant, less easy to understand and less proficient. This Gilligan argues demonstrates the gendered imbalance, lack of understanding and lack of value women’s voices receive in the public sphere.

Whilst the “ethic of care” works well for certain women it does not work for all women in society; not every woman has the same manner of thinking: not all are maternal and some men may be more socially sympathetic. Gilligan’s theory has therefore been criticised for feeding into the stereotypes of the image of a woman as being a caring, nurturing, mother with few needs of her own. It also reinforces the idea of a woman largely being a non-independent being, who is dependent on her family, thus representing and reinforcing male domination. These criticisms should however not undermine Gilligan’s central thesis many recent studies with children support that children from as young as 4-years-old perceive relationships around them differently also develop empathy differently with girls demonstrating much higher levels of empathy than boys towards other people.

If we accept as true that the majority of women may think about rights differently to how men consider them then we should also accept that many social institutions, such as law and access to justice, may be premised and reliant upon how men perceive rights. Such an institution, for example the adversarial court process where there are competing claims to one right with only one victor to a case, may disadvantage women in their pursuit of rights as the system of law is so different from how women perceive and engage in their social surroundings. Alternative conceptions of justice such as mediation may therefore be more inclusive of the way women think and want to resolve conflicts and therefore be better able to provide solutions which better accommodation women’s ethic of care. There are also claims that an inquisitorial system of law where judges examine file dockets and review the cases without the parties being present would remove the aggressive criminal law questioning of complainants and defendants and this may also provide better solutions for women. Further there have been calls for ‘ethic of care lawyering’ whereby the focus of a judicial process should not be exclusively on winning a case, often at any odds, but should be on finding the best outcome for all parties involved.

Radical Feminism:

Radical feminism believes that the very structure of law and rights, as it exists today, has been written by men to regulate behaviour and to benefit other men. It therefore states that the entire concept of rights and the legal system needs to be dismantled and re-built to reflect women and men more equally. Catharine Mackinnon is recognised as being a leading radical feminism theorist.

For Mackinnon, radical feminism identifies the differences between men and women which have been codified in such a manner that as to legitimize discrimination in certain walks of life. Radical feminists critique social structures saying that they are inherently male and therefore discriminate against women. To demonstrate how society and law exclude women radical feminists use the example of how female difference, for example pregnancy, is considered an exception to real equality and is not actually a part of the law at all. This is one area of the law that the legislating bodies accept that there is something valid enough to create separate laws on but this has not always been the case and historically women were denied maternity leave and it wasn’t available to men. Further, in a medical school, everyone learns about the human body, but the specialization in the female body is termed differently as obstetrics and gynecology. Radical feminists argue this is because at some level the male body is considered to be a norm and the female body is an exception. They criticize the equality approach by saying that in order to get the benefits that men get in society a woman has to act like a man as the system has not been created or structured in a representative way.

Radical feminism has explained the inequality faced by women as a product of the male dominance of women, according to them inequality is political and sexual in nature. Radical feminism is a standpoint theory, as to the position of women in society, and takes a completely different view than other theories of its generation. The problem that Mackinnon has with the structure of law is that women are “either the same as or different from the male norm” that society has been built upon.

To demonstrate that the legal system is male centric and does not represent women radical feminism suggests that the very nature of the adversarial court system works on the premise of one person’s rights being deemed more important than another person’s claim by the court. This determination of one winner to a legal case, and as a necessary consequence one loser too does not reflect the ethic of care, the consideration of the outcome for others and the shared rights to something, or the best outcome for multiple people, beyond just the petitioner and defendant, that would, they argue, reflect women’s way of thinking.

One way to achieve greater representation of the ethic of care within the current legal system would be to rely more on dispute resolution and mediation. This however, although being occasionally used to resolve disputes, does not currently hold the same social value or status as court judgments despite often being in both parties’ interests.

Many radical feminists want the entire system of law to be dismantled and re-built from the point of view that benefits women as equally as men; the reasoning is that they feel equality is not achievable in the present system of law. Despite such theories having a lot of support, radical feminism promotes the dismantling of the existing legal system as it exists today. Due to the unlikeliness that the legal system will ever be entirely dismantled and re-structured and the failure of radical feminism to suggest more likely and cooperative suggestions its credibility has been weakened as a strategy to encourage lasting change. Radical feminism has been labelled extreme and unachievable and therefore not a practical form of feminist legal theory for legal reform or to create a more representative system of rights.

Dalit feminism:

Within India women, and especially Dalit women, have been fighting against discrimination for centuries. “Hindu scriptures, especially the Manusmriti, defined both lower castes and women as impure, polluting, and subject to detailed regulation.” Upper caste women were vulnerable to violence and oppression largely because of their proximity to assets and land. If widowed, upper caste women were largely subject to enforced widowhood. They had their head shaved, were stripped of their jewellery, forced to only wear white clothing and often denied nutritious, well-flavoured food in the interests of controlling their sexual passions. In some circumstances widows were also subjected to forced pregnancy from family members to control inheritance claims, forced to live their remaining years in temples dedicated to widows where they were vulnerable to poverty, living from donations to the temple and forms of sexual violence from men in positions of power and authority, or in extreme cases committed sati. “Thus, when Phule and his wife, Savitribai, open the home in 1854 for upper-caste widows who faced intimate violence ranging from physical abuse to impregnation, they were criticising a Brahminical order that sanctioned such practices, even as they were challenging upper castes’ capacity to protect “their women.””

Savitribai Phule and the school she opened for women

Dalit women have for centuries been fighting oppression from patriarchy and men within their caste group, as well as fighting violence and oppression from members of upper caste groups who are socio-economically more powerful, and from colonial occupiers. Dailt women therefore have a long history of fighting against their marginalisation on the basis of their gender, caste, and class position: “Being Dalit, they suffer due to caste discrimination and being a woman, victimised by the patriarchal social order both in their homes as well as outside.” The efforts of Savitribai and Phule were not alone at campaigning for change, social reformers such as Periyar also fought for changes to the caste structure and for women’s rights. “[W]omen’s education was taken up and there were hesitant steps forward on other issues of women’s rights, but [these were] always argued for in in terms of the needs of reformed men for better family atmosphere; independent women activists such as Padnita Ramabai, Tarabai Shinde and Anandibai Joshi were nearly all marginalised” simply for being women.

During colonialism European powers came to India and established colonial rule. White men came to India as governors and high ranking officials and sought other men to perform lower ranking administrative functions. These roles had status as they came with recognition of their administrative labour which was rewarded with salaries. Just like colonial powers only brought European women to colonies as appendages, and “unnecessary appendages” as far as governance was concerned, similarly local women were also granted no status and they were seen as subordinate and unnecessary for local administration. The division of status between the local population on the basis of caste and sex was also affected and this is something which has continued post-colonialism.

Mies’ study, as cited by Mohanty, examined social roles, status and economic labour in a town that had lace making as an industry in the 1970s. Mies states that at the beginning of the lace making industry local roles within society were largely defined by caste but as capitalism and the market economy increased roles were divided on the basis of caste and gender: originally Hindu “Kapu men and women were agricultural labourers it was the lower-caste Harijan [Dalit] women who were lacemakers”. As lace making began to offer higher profits the men started to represent the industry and engage in exporting lace, Kapu women then started producing the lace within the home, free from the public gaze: “Since purdah and the seclusion of women is a sign of higher caste status, the domestication of Kapu labourer women where their (lace-making) activity was tied to the concept of [purdah]…was entirely within the logic of capital accumulation and profit.” As Kapu women moved into the lace making industry Dalit women were pushed into agricultural roles with less status, harsher conditions, and less remuneration.

This case study demonstrates how upper caste men pushed women into the homes to reinforce their own roles and newly acquired status and consequently also had exclusive access to the trading relationships and monetary rewards from women’s production. Within groups of women the study also demonstrates that even when a particular caste group has historical experience performing a trade once trade structures evolve and such skills become more economically and socially valuable upper caste women can usurp lower caste women from their traditional roles in their pursuit of social mobility. This demonstrates how women become marginalised within their own groups and how Dalit women experience a double burden or marginalisation, being outcast from their roles and subjected to harsher working lives. Dalit women’s vulnerability may therefore be seen as “in each minority community, there exists ‘minorities within minorities’, the women who suffer additionally on account of their gender.”

Since the 1980s and 1990s feminist campaigns to increase women’s recognition and inclusion within social structures have become more representative of difference with both black and Dalit feminist organisations coming into existence. It must be noted however that these groups emerged partly because of their proximity to the issues they represented but crucially because dominant feminist movements failed to embrace nuanced issues of representation. As Sharmilla Rege notes: “this was shown in their [the feminist movement’s] restraint in appropriating voices of black and third world women, and [that] their silence presumes that the sole responsibility of combatting racism is that of the black feminists ….. [likewise] issues of caste became the sole responsibility of Dalit women organizations.

Whilst marginalized women’s issues had been recognized by the mainstream feminist movement in India, for example campaigns surrounding both the rape of a 14-year-old tribal girl, and the rape of a lower caste social worker, the Mathura and Vishaka rapes respectively, most of the campaigns failed to recognize the daily struggles and realities of Dalit women and failed to include members from the group within their organisations. Ruth Manorama was one “Dalit feminist who vehemently questioned the feminist movement’s neglect of the caste question and social justice.” In 1993 Manorama founded the National Federation of Dalit Women. Shortly after in 1995 the Dalit Mahila Sanghatana was formed by Dalit women in Maharashtra.

By the 1990s international NGOs were also beginning to recognise caste discrimination as an international issue and this enabled Dalit women’s organisations to play a larger role in furthering recognition of their realities. It was in the 1990s that Dalit women’s organisations articulated the intersectional oppression of Dalit women as:

1. Dalits oppressed by upper caste groups.
2. Dalits generally and agricultural workers specifically subject to class oppression, mainly at the hands of upper caste land owners.
3. Women facing patriarchal oppression at the hands of all men, including men of their own caste.”

By 2001 when the World Conference against Racism, Racial Discrimination, Xenophobia, and Related Intolerance (WCAR), took place in Durban, South Africa, Dalit organizations were organized enough to promote awareness of their marginalized position. This was despite significant resistance from the Indian government, for example by denying international human rights workers, academics and researchers visas to enter the country to meet with local Dalit NGOs to collect data before attending the conference, and the Indian government refusing to acknowledge caste as an identity inherited on the basis of descent and therefore subject to human rights law obligations to redress, a position it maintains even today.

“Uma Chakravarti notes that though women’s subordination is a feature of all societies around the world, the extent of this subordination and oppression is conditioned by the social and cultural environment of every society. She notes: ‘A marked feature of Hindu society is the legal sanction for an extreme expression of social stratification in which women and the lower castes have been subjected to humiliating conditions of existence.’ She identifies caste hierarchy and gender hierarchy as the interconnected organizing principles of the brahminical social order.”

“According to the NHRC, widespread custodial torture and killing of Dalits, rape and sexual assault of Dalit women, and looting of Dalit property by the police “are condoned, or at best ignored.” Further “as Dalits increasingly organize to protest their discriminatory treatment and claim their rights, the government has consistently failed to protect Dalits against retaliatory attacks by upper-caste groups, including the rape of Dalit women, and has failed to address social and economic boycotts against Dalits, thereby further discouraging integrationist movements.” “Dalit women may be branded as witches and blamed for certain misfortunes in the community. Aside from the humiliation of being branded as a ‘witch,’ Dalit women are also punished for these mishaps, for example by being made to eat feces and drink urine, by having their teeth pulled out, by having chili pepper put in their eyes, and by being beaten severely enough to result in death” The National Campaign on Dalit Human Rights has claimed that “every hour 2 Dalits are assaulted, every day 3 Dalit women are raped, every day 2 Dalits are murdered, every day 2 Dalit houses are burnt down.”

In August 2017 a 40-year-old lower caste woman called Kanya Devi was tortured and died as the result of her injuries in Rajasthan. Kanya, who had been widowed just a month before and had a minor son, was allegedly branded a witch, stripped naked, paraded around her village, physically assaulted and made to eat faecal matter. “She was [also] forced to walk on embers which were shoved into her eyes that blinded her. The woman was mercilessly beaten up with hot iron rods.” “[T]here were extensive burn injuries on her legs thighs and other parts of the body.” When the murder of Kanya became known the local khap panchayat held a meeting and decided to ‘absolve’ the accused of the crime by recommending they immerse themselves in the Pushkar waters, pay a fine of Rs.2,500 each and pay for fodder for local cows. An FIR was not filed until activists and the media became involved. Whilst no motive has been confirmed activists have suggested that the murder was likely due to the accused trying to claim her property following her husband’s death and before her son’s maturity.

Such violence against lower-caste women demonstrates their extremely vulnerable position within society, their tenuous physical security and property rights and lack of social and legal protection. Until society actively addresses the stigma that members of lower caste groups experience and works to redress these and include Dalit women within local power structures it is unlikely that significant social change will occur.

Dalit’s inability to secure their economic assets and property, and their marginalization within workforces perpetuates their poverty and inequality. This then has a consequence on Dalit children’s ability to access and remain in education: Dalit children are less likely to be able to enroll and then remain in school until the age of 16 due to financial and social pressures which compound one another. Further they are more likely to be forced into child labour due to economic necessity and lack of alternate opportunities. Without literacy skills and qualifications their ability to participate in employment and local governance remains attenuated. The cycle of poverty, marginalization and discrimination therefore continues. Dalit feminist organisations therefore provide one of the only avenues where Dalit women’s experiences are consistently expressed. It is their activism, often in collaboration with larger NGOs that helps to provide redress and raise political pressure for their emancipation in some circumstances.

The marginalization and vulnerability of Dalit women is shared by women who are members of minority groups within India and abroad. Within India Muslim women, and women belonging to Scheduled Caste groups and tribes face similar oppression and violence. Across the world women from minority groups face similar exclusion and violence. By way of an example the next module will focus on women of African descent in America.

Conclusion:

This module has introduced you to three forms of feminist thought not covered in the previous module: cultural feminism via the ethic of care versus the ethic of rights, radical feminism that relies on cultural feminism to argue that the current form of rights as included in law and the adversarial court system are not representative of women’s way of thinking and therefore automatically disadvantages them, and Dalit feminism which develops a theory to demonstrate how lower caste women have not been included in the feminist rights struggle in India and as a result are now the least represented, least protected and weakest section of society.

Glossary:

1. Ethic of care – is when a person considers the consequences of their actions upon a group of people beyond their immediate environment and tries to find a solution to a problem that gives the best outcome to the largest number of people.
2. Ethic of rights – when an individual feels that they have an absolute claim/right to something and they want to exercise this claim with little to no consideration for the consequence upon others.
3. Adversarial court systems – when two parties go to court competing over a right and the judicial process will involve a prosecution and defence legal team that typically engages in aggressive cross examination.
4. Inquisitorial court systems – when a competing claim to a right from two parties goes to court but the matter is presented in docket and considered by a judge who reviews all of the information presented to her/him,
5. Intersectionality – when two or more distinguishing characteristics that contribute towards someone’s identity co-exist and further contribute towards that person’s marginalized/disadvantaged social position.
6. Marginalization – marginalization is where the experiences, voices and needs of a particular community/particular communities are not accommodated by mainstream social structures. They are therefore rendered voiceless as there is no audience for their needs. This process of not accommodating minority needs therefore marginalizes their experiences to the sidelines of social and structural systems.

Reference

• Carol Gilligan, In a Different Voice Harvard University Press, USA, (1993)
• Karen J. Maschke (Editor), Gender and American Law (Routledge, Third Avenue, New York, 1997), Catharine A. Mackinnon, On Difference and Dominance: Sex Discrimination (1984)
• Jahnvi Andharia, The Dalit Women’s Movement in India: Dalit Mahila Samiti
• Human Rights Watch, Indian Government Tries to Block Caste Discussion (22 Feb. 2001), available at http://hrw.org/english/docs/2001/02/22/india270.htm
• CERD Concluding observations of the Committee on the Elimination of Racial Discrimination: INDIA 2007, Doc no: CERD/C/IND/CO/19 – 5 May 2007
• Uma Chakravarti, ‘Conceptualising Brahmanical Patriarchy in Early India: Gender, Caste, Class and State’, in Economic and Political Weekly, April 3, 1993, 579.
• ‘Hidden Apartheid: Caste Discrimination against India’s “Untouchables” Shadow Report to the UN Committee on the Elimination of Racial Discrimination’ The Centre for Human Rights and
• Global Justice, NYU School of Law and Human Rights Watch, February 2007, Vol.19, No.3
• National Campaign on Dalit Human Rights
• Varsha Chitnis, Gender and Caste in India: Some Implications for the Feminist Movement, as in, Searching for New Paradigms: Understanding Class and Caste within a World of Global Inequalities (2007)
• We should all be Feminists: Chimamanda Ngozi Adichie, April 12, 2013.https://www.youtube.com/watch?v=hg3umXU_qWc
• Different Voices and Experience: Women’s Status, Men’s States: Catherine A. Mackinnon, October 22, 2008. http://www.lse.ac.uk/newsAndMedia/videoAndAudio/channels/publicLecturesAndEvents/pla yer.aspx?id=134
• Sharmila Rege, Dalit Women Talk Differently: A Critique of ‘Difference’ and Towards a Dalit Feminist Standpoint Position, Economic & Political Weekly, Vol. 33 (1998) http://www.jstor.org/stable/4407323
• ‘The Killing of Thangjam Manorama Devi’ Human Rights Watch Report 2008 India. Available at: http://www.hrw.org/reports/2008/india0908/3.htm
• Gendering the Arab Spring: Nadje Al Ali http://www.soas.ac.uk/staff/staff37137.php
• Intersectional Feminism for Beginners: A basic breakdown of third-wave feminism concepts for the genuinely curious and the terribly ignorant. http://intersectionalfeminism101.tumblr.com/
• Female Iraqi Academics in Post-Invasion Iraq: Roles Challenges and Capacities: Nadje Al Ali http://www.soas.ac.uk/staff/staff37137.php