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Can Law be Feminist?

Introduction


The Common Law of England and Wales has evolved for centuries and has overwhelmingly been created by white, upper-class men. It has evolved from an absolute monarchy in the 16th century[1] to a society of the democratic rule of law today.


British women did not have the right to vote or run for Parliament until 1918, when some women were granted this right, and therefore did not have any official right to influence law-making decisions until this point in Britain’s history.[2]


The Sex Disqualification (Removal) Act was later passed and received royal assent in 1919, finally allowing women to join the legal profession and therefore the judiciary.[3] By this point in time, hundreds of years of legal precedent and Acts of Parliament had been created by men and (mostly) for men. It must be noted, however, that because a law is passed allowing women to join the legal profession, this does not mean that societal pressures did not continue to discourage women from joining this profession, or that attitudes towards women in law were positive.


Today, only 29% of senior judges, 35% of Members of Parliament and 29% of Peers are women.[4] How can we have a feminist legal system, or even feminist laws meant to offer adequate representation and protection to half the population, without that half of the population (in this instance, women) adequately represented in that system?


The idea of ‘feminist’ law becomes even more complicated given that there are nearly as many definitions of feminism as there are people calling themselves feminists. To name a few schools of feminist thought, there is radical feminism, liberal feminism, Marxist feminism and eco-feminism. A quick sampling of the literature does not provide a definition of feminist law. If we define a feminist law as a law that aims to improve the lives of allwomen, whether that be anti-discrimination laws, workplace health and safety laws, stronger punishments for sex crimes, etc., there still remains the problem of whether the idea of law itself, from a philosophical standpoint, can be a feminist one.


The Law and its Purpose


Cambridge Dictionary defines law as ‘a rule, usually made by a government, that is used to order the way in which a society behaves’.[5] In this sense, the opposite can also be true: if law exists as a rule to dictate ‘the way in which a society behaves’, then it must also exist to dictate the way in which society ought not to behave. There are, therefore, two types of law: prescriptive law, law that dictates that which ought to be done, and prohibitive law, law that dictates that which ought not to be done.


Law and morality are heavily intertwined, in that laws exist, arguably, to create a more just and equitable society. However, one only needs to look back throughout history to see that something existing in law does not mean that thing is inherently moral. For example, in Canada, women were not pronounced ‘legal persons’ until 1930.[6] Slavery was not abolished in law in the United States until 1865.[7] Marital rape in the UK was legal until 1991 in the UK, as it was presumed that upon marriage, a woman had provided consent for sexual interactions.[8] This presumption in law was not overturned until the case of R v R in 1991.[9] Surely, the consideration of any human being as property is immoral, but at one point or another in history, was considered legal. Therefore, it appears that it is morality and ethics which shapes the law over time, as society progresses, instead of the law shaping morality and ethics.


Law as a Mechanism to Control Women’s Bodies


One only need to look at the United States in a post-Roe (Roe v Wade[10]) world to see how the law continues to be a mechanism used to control women’s bodies, or look to questions loaded with rape myths asked in cross-examination in rape cases (e.g., what were you wearing?) to see that law, in its broader conception, is built on certain notions and societal expectations of what a woman’s role in society ought to be. Indeed, in her book Misjustice: How British Law is Failing Women, Helena Kennedy notes how different conceptions of womanhood play out in courtrooms (e.g., the ‘whore’ is taken less seriously in rape cases, mothers are expected to be nurturers and therefore may be more likely to be awarded custody of their children).[11]


The idea that a human being can be forced, by threat of criminal sanction, to continue a pregnancy and to give birth against their will in a country where organs cannot be donated after death without the prior consent of the now-deceased (the United States) goes to show the difference between how women’s bodies are regulated compared to how bodily autonomy is widely respected when not pertaining specifically to womanhood. Using the law to control what a woman chooses to do with her body is inherently anti-feminist.


Principles of Feminism in Law


There are some ideas in the law which one could argue are inherently feminist. The idea of the rule of law, that no one is above the law, comes to mind. The equitable application of the law to all persons no matter their background, job, status, race, or sex is ideal. The idea of justice itself could also be a feminist one, depending on the type of justice to which we are referring. Punitive justice could be argued to be inherently anti-feminist, especially if we consider the possibility that abortion may become criminalised in the United States,[12]essentially threatening to rob women of even more of their personal liberty for exercising their bodily autonomy. Restorative justice, however, may be more equitable and feminist in its conception.


Referring back to the definition of feminist law this article has chosen to use, being law that aims to improve the lives of all women, then a concept of feminist law goes beyond that of mere representation and having an adequate number of women making laws or a representative number of women in the judiciary. In order for law to be feminist, it is essential that it benefits women. Whether this be by protecting bodily autonomy, reforming the justice system to provide victims of sexual offences with better access to justice, or stronger legal protections from discrimination and sexism, it is clear that the law must improve the lives of women to be feminist.


How to Achieve a Feminist Legal System


The creation and implementation of a feminist legal system is not something that would happen overnight, or even within the next few years. Some might argue that legal systems would need to be scrapped and re-created using a feminist legal framework. While this may be true, this article suggests otherwise. It is possible to reform our current legal systems through purposive changes over time, and doing so may be more efficient (and is certainly more realistic) than arguing for complete destruction and rebuilding.


Although it may seem that it was argued otherwise above, the first step to the creation of a feminist legal system is an adequate representation of women at all levels of the legal profession and justice system. From practitioners to the judiciary, to academia and parliaments, laws must be analysed, created, implemented and applied with women’s perspectives adequately represented at all levels of the process.


It could be argued that the next step in creating a feminist legal system is to stop creating female-specific laws. Creating laws that can only be applied or are only relevant to women must surely only serve in contributing to the ‘othering’ of women. It is not men’s bodies that need to be regulated (we don’t criminalise adult men for vasectomies). It is likely very rarely men who need protection from sex-based discrimination (although in some female-dominated professions, this may be the case).


What is really needed is a cultural shift and the erosion of misogyny in our communities and societies. As long as misogyny still exists and we still live in a patriarchal society, it is difficult to imagine that the law itself can be feminist, though it may still be possible to create feminist laws.


Conclusion


Given that women are underrepresented in the legal profession at all levels, and that we are witnessing the erosion of women’s rights and bodily across the globe, it is relatively easy to answer one question this article poses with a no; the law is not feminist. However, a feminist law is possible, but will require many reforms over what may end up being a very long time. One thing this article argues is certain is this: to create feminist legal systems, we must dismantle the patriarchy.

[1] James Daley, ‘The Idea of Absolute Monarchy in Seventeenth-Century England’ (1978) The Historical Journal 21(2) <https://www.jstor.org/stable/2638259?saml_data=eyJzYW1sVG9rZW4iOiJhN2Q1ODYyOS1kZWUzLTQzZWYtODU4OC1lY2MyNDUwYzlhMzYiLCJpbnN0aXR1dGlvbklkcyI6WyIxN2VlMTcxNC1hNWEyLTRlOTUtYWY1ZS0zMjcyZGNkMDZjMjMiXX0#metadata_info_tab_contents> accessed 25 August 2022. [2] UK Parliament, ‘Women get the vote’ (2022) <https://www.parliament.uk/about/living-heritage/transformingsociety/electionsvoting/womenvote/overview/thevote/> accessed 25 August 2022. [3] UK Government, ‘The Sex Disqualification (Removal) Act 1919’ (2019) <https://www.gov.uk/government/news/the-sex-disqualification-removal-act-1919> accessed 25 August 2022. [4] UK Government, ‘Diversity of the judiciary: Legal professions, new appointments and current post-holders – 2021 Statistics’ (2021) <https://www.gov.uk/government/statistics/diversity-of-the-judiciary-2021-statistics/diversity-of-the-judiciary-2021-statistics-report#:~:text=34%25%20of%20court%20judges%20and,the%20High%20Court%20and%20above).> Accessed 25 August 2022. [5] Cambridge Dictionary, “Law” (2023) <https://dictionary.cambridge.org/dictionary/english/law> accessed 24 February 2023. [6] Henrietta Muir Edwards v AG for Canada [1930] AC 124; Susan Altschul & Chrstine Ccarron, ‘Chronology of Some Legal Landmarks in the History of Canadian Women’ (1975) 21(4) McGill LJ 476 <https://lawjournal.mcgill.ca/wp-content/uploads/pdf/7591703-carron.pdf> accessed 5 February 2023. [7] National Archives, ‘13th Amendment to the U.S. Constitution: Abolition of Slavery’ (United States Government, 8 September 2016) <https://www.archives.gov/historical-docs/13th-amendment> accessed 5 February 2023. [8] Matthew Hale, History of the Pleas of the Crown, 1 T Payne 1800. [9] R v R [1992] 1 AC 599. [10] 410 US 113. [11] Helena Kennedy, Misjustice: How British Law is Failing Women, Vintage 2019. [12] The New York Times, ‘Tracking the States Where Abortion is Now Banned’ (New York Times, 10 February 2023) <https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html> accessed 27 February 2023.

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