The Development of Feminist Jurisprudence



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In the alternative pedagogical approach, feminist jurisprudence is not treated as a separate optional subject but is integrated into the law curriculum. Such an exercise may be initiated either through institutional curriculum reform or at the government level.43 Integration means that all students study feminist ideas in order that they might be sensitised to the ways in which gender has operated and continues to operate as an organising principle within law, religion, culture and public life, most particularly to the detriment of Third World, Aboriginal, lesbian and poor women. While a separate subject is desirable to complement the integrated approach and to allow depth of treatment, integration means that gender issues are less easily “ghettoised” and relegated to the realm of the “other”. It also means that hostile and resistant colleagues must confront the question of whether they are continuing to teach warped notions of legal knowledge.

There are drawbacks to the integrationist approach, however, in that the core, or foundational, subjects which conventionally include property, contract, torts and commercial law, and which uphold the capitalist imperative, are privileged over those concerned with the affective and the corporeal, such as family law, human rights and discrimination law, as well as subjects focussing on gender and sexuality. That is, it is somewhat paradoxical from a feminist perspective that those areas which permit the least space for the feminine and affectivity have the highest institutional value attached to them. Not only are those subjects likely to be compulsory, while the latter are likely to be optional, but the compulsory cluster are very adept at sloughing off unruly knowledges through a focus on the technocratic, a process I have termed “technocentrism”.44

Large quantities of doctrinal law — which admitting authorities may require to be assimilated and examined — leave little space, it will be argued, for alternative perspectives. Unsympathetic colleagues may seek to hide behind the convenient rubric of “academic freedom” or the necessity of “getting through the course” to evade the discomfort of confronting the sexed, raced and heterosexed nature of legal knowledge. Anxious to establish their expertise as good technocratic lawyers and to present themselves as such in the market place, students may also be resistant to feminist knowledge. To be acceptable to the mainstream, therefore, feminism may be forced to relinquish its oppositional stance in favour of blandness; the “success” of the integrationist effort then involves a questionable assimilationist element.

Some topics within the canon of common law jurisdictions lend themselves more easily than others to the development of feminist perspectives, reflecting the historical trajectory of feminist concern, such as family law, labour law, and criminal law, as already outlined. Many courses on legal theory, or jurisprudence, now include at least a segment on feminist jurisprudence as a “perspective” on law, along with “Law and Economics” and “Critical Legal studies”.45 Subjects such as constitutional law, contracts, torts, corporations, and taxation are more of a challenge because the legal person has been invariably conceptualised as neutral and degendered. As pointed out, however, the primary mission of feminist jurisprudence has been directed to deconstructing this assumption of neutrality and exposing the masculinist partiality of law, which means that there is an ever-expanding feminist literature from which the innovative teacher can draw. I shall briefly gesture in the direction of the possibilities of feminist jurisprudence in the more traditional and intransigent areas of the curriculum.

Constitutional law has presented a challenge for feminist scholars because it is suffused with a powerful rhetoric of universality. Indeed, I would contend, the very point of maintaining a high level of abstraction in constitutional discourse is to keep particularity at bay, whether it be in regard to sex, race, sexuality, or other dimension of identity. The concerns of citizenship have thereby come to be equated with those of benchmark masculinity. Nevertheless, this modus operandi of constitutional law can be deployed productively as a site of critique in the classroom. Articles 14–16 of Constitution of India 1950, which guarantee equality and proscribe discrimination, provide an obvious mode of entry for feminist critique, as is the case with the Fourteenth Amendment of the United States Constitution, and S 15 of the Canadian Charter of Rights and Freedoms. In contrast, the Australian Constitution makes no reference to equality, although there has been an attempt to read such a prescript into the Constitution.46 Nevertheless, it is important that any critique transcends issues of gender inequality to consider questions pertaining to constitutionalism, citizenship,47 relations with the state,48 and the meaning of democracy.49 In the context of “the nation”, race, culture, class, religion and postcolonialism intersect with sex/gender in important ways.50

In the teaching of contract law in the West, the most notable omission has typically been any reference to either of the most fundamental forms of contract, that is, the social contract or the marriage contract.51 Thus, to start off a contract course with these unique forms of contract is to problematise and expose the masculinist underpinnings of law. Specific forms of written gendered contract, such as nuptial and pre-nuptial contracts, challenge the notion of separate spheres.52 Indeed, comparing commercial with non-commercial contracts highlights the way law underpins and facilitates capitalism and market activities, while diminishing those values associated with the private quasi domestic sphere. The intersection between imperialism, race, class and sex could also be theorised within a framework that problematises this liberal separation between public and private.

In view of the key role played by corporations in today’s global and postcolonial world, it is desirable to go behind their facilitative role in teaching “corporations law” to consider the impact of the intersection of gender and race. A study of the law of corporations includes not just the relentless search for profits and power but the ways in which corporations themselves are bureaucratised and hierarchised, with women and the racially disfavoured invariably occupying the pyramidal base, and a few privileged men dominating the apex.53

Rebelling against a simple transmission of orthodox legal rules, feminist scholars have carried out critical and transformative work in conventional areas of law, including tort law,54 property law55 taxation law56 and evidence law.57 A philosophical exploration of notions of property and labour allow focus to be directed to the value attached to “women’s work”, which is universally undervalued as Marilyn Waring has compellingly shown.58 Feminist critiques of the issues of dower, dowry and family property would also appear to be fertile fields in the Indian context.59 Clearly, it is possible to include imaginative teaching materials that encourages law students to confront and think more deeply about the enterprise in which they are engaged in every area of knowledge.

Apart from being conscious of the differences between women, I would also add a few general caveats. First, to ensure as far as possible, that selected cases and materials depict women and “others” in diverse and positive roles — as authoritative actors and agents of legality, that is, as lawyers, judges and legal commentators. Secondly, to present positive experiences and resistant possibilities for women and “others”. While violence and depressed economic circumstances represent the reality for many women, the representation of women as the invariable victims of law can be disabling and dispiriting for students. Thirdly, to avoid the “essentialist” tag by including material that is inclusive of and sensitive to diversity among women, and which acknowledges the multifaceted nature of women’s experiences. The possibility of dislodging the Eurocentric, heterosexist, able-bodied, middle-class hegemony of feminist legal scholarship is tantalising, but it has to be recognised that these descriptors apply to law generally.

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