Jurisprudence is a legal theory which deals with the philosophical questions about the law. It contributes to a deeper understanding of the law, by providing the tools to engage in rational criticism of the law. The key conceptual questions about the law relate to similarities and difference between the law, force, morality and politics. Feminism is the advocacy of women’s rights on the ground of the equality of the sexes, with the view that women have been subject to subordination throughout the centuries. Feminist jurisprudence unmasks the the many inequalities based on gender, deriving from nature and culture and encapsulated in the law. preface.
The debate of the status concerning women dates back to Ancient Greek, in writings of Plato and Aristotle, discussing the roles of women and the idea of the private and public sphere. It was not however until the eighteenth century that marks the first origins of contemporary feminism, where feminist campaigned against discriminatory laws, and the desire to participate fully in civic life, this is known as first stage feminism, where women work within the existing legal system in order to remove the inequalities without questioning the system itself. The writings of de Beauvoir revitalised feminism and forms the foundation for much feminist analysis in 1949.
The women movement of the 1960’s and the political activity of women of the prevailing more in the western society, represented a radical departure from women’s conventional roles and stereotypes.Second stage feminism concerns the questioning the social structure which perpetuates inequalities. Third stage feminism concerns questioning the neutrality of the law, where that the law is so complex, it is able to conceal the gender bias.
This essay will look into the concerns raised within the Article based on women in the pornography industry, the violence against women, and the law in these areas contribute to the subordination of women, in comparison with the Article with Catherine Mackinnon.
The work of De Beauvoir shaped the feminist movement, highlighting the subordination of women in society. De Beauvior noted that in the construction of the society and, of language, religion and the family rests on the assumption that the world is male. This gives men the control, and suggests that they are able to control society and the law, as men as the standard against all people are judged. A key example of this is the terminology in the law, in negligence Tort law ‘the definition of the reasonable man is that he is the ordinary man, the average man, or the man on the Clapham omnibus. Women are excluded from these constructions of society becoming ‘the other’. The idea of gender itself is a social construct, this construct has been enforced by law created by man to dominate men and subordinate women, the idea of ‘the other’ is reflected in the law being male, and the subjects are male. ‘she is defined and differentiated with reference to man not he with reference to her; she is incidental..inessential…he is the subject, he is Absolute – she is the Other’. At the best, in law women have been ignored, at worst oppressed. In De Beaviors view, women can only be recognised law when they are listened to and their view taken into consideration, even jurisprudence itself is seen as rational objective ordering of gender neutral persons, however subconsciously addressing only the essential male. This view is similar to Catherine McKinnon, in the explanation of the Dominance theory. McKinnon is one of the most prominent radical feminists of the last century. McKinnon’s dominance theory rejects the emphasis of sameness or difference of male and female in the law, for example the use of sex discrimination, as in the Equality Act 2010 it defines the law as for women, and for men. McKinnon draws the issue, as with De Beauvior that the standard that is used is against a male, as ‘that man has become a measure of all things’. McKinnon argues that the real effects of equality show the true measure of power. The discrimination that is faced, along with violence, and such ‘jobs’ such as pornography and prostitution are act which happen largely towards women, these acts demonstrate male power and dominance over women. The article is based upon Mackinnon’s new book ‘Are women human?’, which portrays the law as women being subordinate to men. This in Mackinnons view is supported by the law being in favour of men. The influence of this article, is based on the extreme interest in equality in the modern day, Mackinnons is seen as a radical feminist, however does not view all laws as a bad thing. In the article Mackinnon praises Sweden for the change in the law of prostitution in 1999, deciding that prostitution was male violence against women and as a result criminalised the buying of sex and decriminalised the selling of sex. In the legal perspective of how women are viewed, Mackinnon rejects the legal strategy for improving the inferior position in which women find themselves. The liberal approach of equal treatment of liberal feminists, is rejected, along with the “special treatment” approach of more radical feminists. Mackinnon claims this perpetrates the male standards and values from which difference is measured. The views of Mackinnon are in some respects, stand alone, where even those who are feminists, see Mackinnons approach as ‘feminism unmodified’, or even branded a ‘victim feminist’.
In Mackinnon’s new book, the theme of pornongraphy is used as her thesis to demonstrate that the whole of society is constructed as a male hierarchy. To Mackinnon pornography plays a critical roles in the systematic oppression of women.
Radical feminists believe that pornography is “the graphic sexually explicit subordination of women through pictures or words” this depiction of women leads to an example of the power men have over women, and men who view these images will go out to commit sexual assaults and violence against women, as they view them as sexual objects, inferior to the men. ‘The fact is that rape and prostitution caused and continue to cause pornography. Politically, culturally, socially, sexually, and economically, rape and prostitution generated pornography; and pornography depends for its continued existence on the rape and prostitution of women’, radical feminists believe that by allowing the use of pornography to continue it will repeat the abuse of women. Catherine Mackinnon takes the view that there is a direct link between the two, that those who view pornography leads to the inevitable of ‘consumers want(ing) to live out the pornography further in the three dimensions. when they feel that they can get away with it, they do’. The effect of pornography on consumers is evident in aspects, Gail Dines an anti-pornography activist interviewed 10 men in prison. All were habitual users of child pornography. “What they said to me was they got bored with ‘regular’ porn and wanted something fresh. They were horrified at the idea of sex with a prepubescent child initially but within six months they had all raped a child.” This supports Mackinnons view that consumers will inevitably fulfil the fantasies created by pornography, which maintain and reinforce women inequality in society by representing women as female objects, readily available for male use. McKinnon’s theory of ‘power and unequal distribution’ says the difference in gender is the difference in power, by use of pornography men view the pornography as an expression of power, it is a political subordination of women, by advertising women as male objects which a freely available to be used by men, which leads to the sexual abuse of women. However, research suggests views different to radical feminists, as there is no substantive evidence of the increase in violence against women. Research carried out by professor Kutchinsy found there was no increase in violent crimes in Germany or Sweden or Denmark between 1964 and 1984, although hard-core pornography was decriminalised. This research supports the liberal view on feminism, where women view pornography as a way of expressing their freedom of choice to do what they want, and see their sexuality as positive, rather than a negative which is controlled by men. Ronald Dworkin rejects the idea that pornography causes measurable harm to women, and that ‘pornography makes for inequality’. Dworkin claims that any idea of political subordination is due to other factors, like advertising on the media with women dominantly put on advertisements for cleaning, this is more reason for inequality rather than the graphic pornography that is relatively inaccessible. The regulation of pornography in the United Kingdom has been restricted, with the Audiovisual Media Services Regulations, which bans certain sex acts within pornography. Although this does reduce the harm of women within the industry, the effect the pornography has on men, where there dominance which has a ripple effect into society where men believe that women are subordinate to them.
The article discusses Mackinnons view on violence against women, and how the law does not protect women. Gender based violence is difficult to assess statically as it is predicted that most violence will go unreported. The current estimate is that thirty five percent of women have experienced sexual violence, however some studies suggest this could be as high as seventy percent. The reason for this is based around patriarchal attitudes, with the notion of male ownership, control and dominance. This is spread throughout cultures such where unnecessary procedures are performed like female circumcision. ‘Domestic violence is the systematic, ahistorical, acultural manifestation of male power . It is immutable and enduring as patriarchy which supports it’. From a radical perspective, the abuse, in a sexual and violent nature against women is symptomatic of unequal power relation in society, which is a repeated pattern from history to present. Mackinnon argues the violence and sexual abuse is explained from the principal factor in gender abuse, from the create roles, of women being kept in the private sphere as a housewife, taking the subordinate role, and men having the control. The law and legal rules are created from the sociological changes that occur. The lack of change in the law has placed women as inferior, or subordinate in their position to men. Another issue raised within domestic violence is that this violence accounts for a quarter of all crime, yet only five percent of reported cases end in conviction. Radical feminists argue that the reason for this is that women have become so subordinate in both society, but also that they are reliant on males for economic purposes.
Radical feminists belief that there is inequality within society is justified within the law, however there are a substantial amount of new laws, which over the last century, demonstrate the shift in society, where there is much more awareness of violence against women, and the law has recognised this. The recognition of battered women syndrome, brought to light the awareness of gender. The case of Ireland and Burtsow is significant, as the justification by Lord Steyns’s shows how the feminist movement has influenced the law, where the silent phone calls where recognised as a ‘significant problem’ where there should be ‘effective protection to victims’ which were mainly women. The was an advance for the law, in the protection of women, however Lord Steyns statement is an isolated example of male sexual power. It does not acknowledge the wider structural picture, where sexual violence is implicated strongly against women. This case, strongly suggests that the protection of females are needed due to the advance in techonology, which is the issue, not the changes in attitudes of sexual domination from which radical feminist believe to be the main issue. The judgment of this case, demonstrate that although the law is changing, the views of the male judges do not fully recognise the subordination of women that occurs in Ireland the male committing the crime, demonstrates male dominance and power which women are subject to.
Feminist view on prostitution is similar to pornography, in that the radical feminists view prositution as a form of women oppression, through lack of opportunity or forced into the circumstances, both these arguments are based around the idea that men are the reason for this. Prostituion reinforces a stereotypical outlook on women as sexual objects, who are there to be used and abused by men. Kathleen Barry is opposed to prostitution, and claims it is a form of violence against women that should not be tolerated in society. Radical feminists assert that prositution is in most cases not a conscious choice, but forced upon women due to a bad economic situation.
Radical feminists argue that women exist as a product of their social surroundings, as Catherine Mackinnon argues “sexuality is defined as whatever a given society eroticises” this suggests that women are not free to control their sexual lives, as they are socially constructed, through laws, and society which has been moulded by men. MacKinnon’s theory is that women’s connection with men is intrusive, where sexual penetration is an invasion of the physical boundary between ‘self’ which are male and ‘other’ which are female. Mackinnon views males as the subjects, and females are the objects, which questions whether women as ‘objects’ have the ability to consent at all. This idea is constructed on the idea that women have internalised dominance and submission as normally activity, therefore arguing that the way women are socialised in society determines the outcome of their choices. Radical feminists suggest it is the social disadvantages of women that lead women into prostitution, and these disadvantages are demonstrated in the law.
The position of liberal feminists, and pro-prostituion is focused on dismantling what is considered the false perception of the difference of men and women, this is to bring a balance between men and women, so women have more opportunities. The opportunity of prostitution is a consensual, liberating and empowering experience. Liberal feminists view prostitution as as an acceptable profession, where a woman’s body is sovereign, where it is her choice to do as she chooses, in the same way that a woman should have guarantee choice to have a medically induced abortion. Liberal feminists and advocates for sex workers, are in favour of removal of laws against prostitution. In the UK the Sexual Offences Act 2003, makes it an offence to cause or incite prostitution for personal gain. This does protect prostitutes to an extent, where discouraging pimps, and sex trafficking, although many workers argue that any restriction on prostituion aims to control women sexuality, which enforced the belief that men want to control women’s bodies. However some Liberals do agree with radical feminists, in the view that to keep prostitution in a state of quasi-illegality that promotes violence, rape, and disrespect for women, by putting women subordinate to the clients who may harm them.
Radical feminist view rape as an important pillar of patriarchy. The current law on rape has three main requirements. To penetrate vaginally, anally or orally with the penis, A must not consent, and B must reasonably believe that A did not consent. This is the contentious issue that Mackinnon raises, where the law is made by and for men. Mackinnon says ‘”The fact that the law of rape protects rapists and is written from their point of view to guarantee impunity for most rapes is officially regarded as a violation of the law of sex equality, national or international, by virtually nobody.” The case of R v Hysa demonstrates how the circumstances of a rape can effect the ruling, regarding consent, the trial judge rules there was no case to answer due to the victims intoxication, they could not give clear evidence of consent. From a radical feminist perspective this demonstrates how the law supports the defendant, instilling fear in women to not come forward after a rape, in case they are not believed. This ruling from a judge, demonstrates how the law is cautious about when consent takes place, however this is contrasted with F v West Berkshire Health Authority which is an example of evidential presumptions, that may arise if a victim is incapable of giving consent, suggesting that the law is more equal than radical feminists suggest. An issue Mackinnon has with the law on rape involves the test for reasonable belief of consent. In DPP v Morgan it was argued that a person who honestly believes there is consent, should not be convicted of rape, however this was rejected by the judge, and the defendants were found guilty. This is argued by radical feminists as not enough, as the jury is essentially deciding who’s story they believe more, in these instances. This is where the circumstances of the case, place women at a disadvantage in the law, as the consent is blurred when under the influence of drugs or alcohol.
In conclusion there is strong evidence to suggest that there is not equality within the law for men and women. The use of terminology that judges have used suggests that there is not complete recognition by the male judges that subordination of women do exist, however there has also been a vast improvement in the law to protect women, especially in crimes which dominantly happen to women. Mackinnons view that the law is written by and for the men is seen as potentially outdated, as there are a vast amount of law, which are repealed or altered to account for women, and other groups such as The Equality Act 2010. The strongest arguments by Mackinnon and radical feminist in general is the issues regarding prostitution and pornography, where there are views which suggest that pornography damages women, as this portrays their subordination to men at home, which ripples the effect into society, like domestic violence, and other acts against women, which is argued to be as a result of what men view in pornography. Feminists view the lack of regulation within the sex industry as the reason why their is such a high rate of violence against women, however this is some evidence to suggest this may not be true. Radical feminists view prostituion as an example of women subordination, as a symptom of lack of opportunity personified by law created by men. Liberal feminists oppose this view that prostituion is a form of sexual freedom, an example of how they are no longer oppressed. The view on the legal description of law on rape as to how it is judged in court suggests that the law has no