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Feminist Jurisprudence and Reinforced Gender Roles
In addition to biases within legislation there are many age old practices and features of society that help to portray subordinated imagery of women both subtly and overtly. Vestiges of these practices linger in modern legal practice. For instance, marriage and divorce laws have historically posed a notorious means of dominating women. For example, the former existence of legal doctrine such as the Common Law doctrine effectively made marriage a defense for rape. This was only overturned relatively recently by the House of Lords in the early 1990s.
Also, the existence of traditional gender roles in mainstream UK society means that despite the growth of unconventional family units and the fact that most women also work outside the home along with their male partners, the image of women being primary homemakers and caregivers remains a powerful force that can often pose a threat to the fairness of divorce settlements. When two parties wish to seek a divorce settlement it is the aim of the lawyers to endeavor to get one party to concede.
Statistically, woman are more likely to concede. Therefore, in legal challenges, the contributions of women in the form of raising children and supporting the family, gain little reward financially which is the main focus in divorce settlements.
More radical feminist proponents believe laws that are supposed to protect women against discrimination will not be effective unless men are prepared to relinquish economic and social power. According to Harvard academic Catherine MacKinnon, the law represents male interests, therefore, women should not rely on it. Male dominance starts in the family with male control over women’s bodies which even extends to their ability to define and construct female sexuality. Law reform in itself would not address or remedy this problem. This suggests that equality and justice for woman will need more than legislative change to exist. A genuine shift in the interconnected relationships and biases between the genders would need to occur to bring about a more legally balanced and socially equitable environment in which women are viewed, represented and treated as full and valuable participants in all sectors of society.
In addition to more concrete ways of reinforcing patriarchy and paternalism, pornography and prostitution are also props that reinforce the dominance of men over women. Co-existing with is ugly relatives – sexual harassment, sexual discrimination, sexual hatred, violence and prostitution – pornography represents a powerful image of man as politically and sexually dominant. Even in what may be considered progressive cultures, there are startling areas of concern. For example, Several states in the USA allow children as young as 10-11 years old to be married with parental consent frequently to much older men. In addition to this, most countries do not list sex crimes or sexual violence as grounds for asylum despite, vast numbers of women and girls worldwide being victims of systematic sexual violence.
Supporters of prostitution or pornography argue claims that these industries are derogatory are unfounded because it is liberating for a woman to do as she pleases with her body. They stress the idea that limitations or judgment regarding what a woman wants to do is discriminatory in and of itself. Sexual liberation should be all encompassing and the ideas that pornography and prostitution are an immodest derogatory portrayal of women invalidates women who have chosen to do this out of free will. Feminism surely believes that women should be viewed as individuals and not as a group. However such theoretical concepts fail miserably to address the organized and highly profitable exploitation of women and girls which drives these industries. Women by and large are not equal participants in the distribution of the economic gains. Moreover, the criminalization of prostitution reinforces the argument that society does not prioritize initiatives to help or offer alternative opportunities to these women but to marginalize them further.
Jurisprudential thinking helps us to understand that prostitution is a practice that exists as a result of a patriarchal order of society which supports the continued viewed of women as sexual objects. Although it may be a choice for some, the reality is that most sex work is not a result of free will, often a result of poverty and lack of opportunity. Although most feminists would agree sexual liberation of women is an important feature in gaining equality, we must be careful not to normalize practices which are unequal in nature and reinforce that men are in control and dominate sexual experiences.
It is important to note that culture plays an essential role in the creation and interpretation of law. Cultural influences generate diverse differences determining how inter-gender relations develop and are perceived by wider society. In effect, customs and traditions of nations largely influence their value systems and perceptions of what is right and therefore the dominant social norm. One constant thread which appears to be globally evident throughout many cultures, however extreme, is patriarchy. It seems to be universal. This systematic oppression has existed through the ages, and socialisation means it is seen as a norm and unquestioned in many ways, not only by men but women as well. This means that many laws have outlasted the good law test. They are, in real terms, a simple reflection of a deeply indoctrinated norms which have become ingrained in social consciousness. Issues of feminism may not be easily solved by blanket solutions but acknowledging that there are biases between the sexes is the basic start in the continued journey for justice and equality. The law is never finished it is a work in progress. (Brown vs. Board of Education).
