"I Believe in the Social, Political and Economic Rights of Women" - Exploring Feminism from a Law Student’s Point of View

An article by Chloe Cooke on the inequality that has plagued the English legal system over the last century. A combined political, historical and legal piece investigating changes showing how unequal society in front of law has been 

It cannot be ignored that men and women share different anatomies. However, what can be ignored, is the myth that the lack of a particular sexual organ justifies discrimination in all areas of a woman’s life. This discrimination against women is due to years of patriarchal disparity which has advanced like a grotesque weed, embedding its roots across the breadth of civilization. Gilman wrote frankly, “There is no female mind. The brain is not an organ of sex.” This quotation sets a suitable frame for which to surround the structure of this article.

The article will delineate how feminism, as a movement, should be endorsed for headlining the oppression conscripted onto women and how, in reality, any proposition to advocate the differences between genders is fundamentally flawed for bolstering the despotism of patriarchy. Until 1922, no woman was allowed to qualify into the Bar of England. Until 1970, women were paid considerably lesser amounts for completing the same job as their male co-worker. But sexism is not an issue of the past. It is still breathing through society today, and as long as sexism exists, feminism must also coexist as a source of philosophical thinking- fuelled through political activists and influentials, if that is what is inordinately required to demand women to be viewed as equal members of society. The feminist movement will be ratified through exploration of its different periodic crusades; Liberal, Radical and Difference Feminism. Liberal Feminism will be adopted as a favourable school of thought and will be defended throughout as a favourable logic to settle the abundance of altercations on the basis of sex, promoting women as autonomous beings, disproving the belief that inequalities between sexes are based on natural differences rather than social constructions, and promoting equality through political and social reform.

 

The first substance of political feminism emerged as ‘liberal feminism’ in 1838, when ‘first wave feminism’ was a mere ripple in the ocean. Liberal feminism, pushed to its core, argues that women are autonomous individuals entitled to the same rights as men[1], and that inequalities between the sexes are not based on any ‘natural’ differences but are consequences of social constructs. These social constructs have become embedded in society from the dawn of humanity. To attempt point a when, and why, discrimination against women began is a difficult exercise. In the 18th Century, William Blackstone, English jurist, wrote in ‘Commentaries on the Laws of England’ of women being the inferior sex, whose “rights are suspended” during marriage. Famous jurisprudential philosophers such as Kant, who believed men are the ‘noble’ sex and women the ‘beautiful’ sex[2], and Aquinas who agreed that women were made as ‘man’s helper’[3], contributed to nourishing the social construct that the different physical anatomies of the sexes correlates to different treatment of the rights and autonomies of women. The early liberal feminist movement believed it was these views, enshrined into legal texts, which allowed the social construct that women are inferior to men, to evolve. Hence, the Liberal feminist would argue that the differences between the anatomy of the sexes are points of oppression which reduce women’s opportunities to exercise their political and legal rights. These points of oppression have been constructed by society, and attempting to encourage recognition of these differences would continue to promote inequality.

 

The 19th Century heard the case of Jex-Blake v. Senatus of Edinburgh University, a case which ruled that women would not be allowed to attend university, as;

 

“There is a great difference in the mental constitution of the two sexes, just as there is in their physical conformation… the general mass of an army cannot move more rapidly than its weakest and slowest portion”

 

Lord Neaves, in this case, uses the image of a weak solider slowing down the rest of his comrades to that of a woman attending university. The court ruled that it would be inappropriate to allow a woman to study as the physical differences between the sexes have left women unable to perform at the same level as men. Academic writings during this period support this belief, such as the writings of Cowell who attempted to answer the question, ‘is there such a thing as sex in mind?” The answer was believed to be an unequivocal ‘yes’. For example, Edward Clarke’s argument in ‘Sex in Education’, was that by going to university, women would ‘shrink their ovaries’ and cause a ‘decline in civilisation’.  This toxic belief, if followed into the 21st Century, may have resulted in the inability of women to acquire higher education. If so, Grace Hopper may not have endeavoured to make computing accessible to the public, Marie Curie may not have been able to advance the study of radiation in healthcare and many other women who have studied at university to go on to do remarkable things for humanity may not have been given the opportunity to do so. This case demonstrates how a legal system which supports the concept of treating humans differently based on their physical anatomies promotes a breeding ground for social injustice.[4] It is overtly clear, following the beliefs of the liberal feminist movement, that supporting the idea of women being treated differently because of their reproductive organs is a noxious conclusion that should not be supported in our legal system.

 

Liberal feminists believe that sexism is an issue which expands beyond the public sector, divulging into an assault and intrusion upon a woman’s private life. Liberal feminists demanded autonomy for women in their private lives and argued that the different anatomies between the sexes is not an adequate ground for removing reproductive and legal rights for women. Historically, this issue was prevalent in the courts in medical cases. Re S is a very contentious case for this reason. S was in labour and was six days overdue. Citing religious grounds, S refused to have an emergency Caesarean Section. The Health Authority applied for a declaration to perform the operation on S to preserve her life, contrary to her wishes. The Court granted the declaration, demolishing the legal right of S to refuse treatment. Liberal Feminists argue that this undermines a well-established point of criminal and medical law, demonstrating a bias as to how men and women are treated in these cases. To demonstrate this sex bias, the case can be neatly contrasted with the case of Re C, in which a male schizophrenic patient was entitled to refuse treatment despite the chance of death if the operation was not performed. This man was medically delusional, yet the court respected his wishes as an autonomous human being. This was an alarming decision as it demonstrates discrimination of personal life on the basis of sex, and stripping women of their autonomy because of their biological differences. An institution which continues to view these differences as fundamental will inevitably continue to wholly discriminate against women.

 

Furthermore, liberal feminists argue that women have also been stripped of their reproductive rights within their private life. Until the enforcement of the Abortion Act 1967, abortion was illegal under the Offences Against the Person Act 1861. This resulted in many women having to resort to back-street abortions, permanently damaging their health, so much so that between 1923 to 1933, fifteen percent of maternal deaths were due to illegal abortions. On the face of it, the Abortion Act 1967, which provides provisions relating to circumstances where an abortion would not be a criminal act, seems to promote women’s rights and autonomy. However, the Liberal Feminist movement argues that the act medicalises abortion so that it is not a decision of autonomy, but medicine, as the final decision is made by two doctors and not the pregnant woman. Whilst this is the case in the United Kingdom (only recently in Northern Ireland), abortion is viewed differently across the globe. The liberal feminist would perhaps argue that the ideal legal framework surrounding abortion is that in the United States. Decided in 1973, the case of Roe v Wade was one of the most renowned US Supreme Court decisions. The court held in a 7-2 decision that banning abortions was unconstitutional, making abortion legal in many circumstances in states across America, giving rise to what Joan Williams has called a “gender war over whether women should be citizens of the republic of choice.” However, to critique this school of thought, it is noteworthy that the decision in Roe does not entirely grant the women autonomous right to abortion- rather the right is tied to their doctors. Read cynically, the language of the judgement grants women mere ‘consultation rights’ regarding abortion. This may be a smokescreen to hide the social tendency of defining women in relation to other people. Clearly, taking on a liberal feminist view, there is no ‘perfect’ legal instrument in our modern culture. The biological differences between men and women are a point of oppression and can only be eradicated when men and women are placed on the exact same social pedestal.

Finally, the Liberal Feminist view on sexual violence shall be discussed, as it is perhaps the most compelling argument towards adopting a Liberal Feminist view. Until relatively recently, non-consensual intercourse between a husband and wife was legal. Much to the belief that marital rape was a private concern that nineteenth-century feminists feared to discuss, Liberal Feminist advocates spoke widely about the issue and publicly demanded law reform. The early movement demanded that rights should be gender-neutral and that “women were essentially human and only incidentally female.” R v Clarence is a case which demonstrates the imperative demand for the biological and reproductive differences between men and women to be frivolous in any legal instrument. Clarence knowingly passed on venereal disease to his wife through intercourse. His initial conviction was quashed on the grounds that by the contract of marriage, the wife has ‘given up herself unto her husband.’ The idea that a woman sacrifices her legal rights and autonomy to her husband upon marriage was a deeply distressing thought for the Liberal Feminist. Our legal history tragically worshiped a phallic power, only granting women their legal sexual rights in 1991 by the Sexual Offences Act 2003, encouraged by a Law Commission Report in 1990 which concluded that “marital immunity in rape should be abolished in its entirety.”

Although women have gained substantial rights as to the issue of marital rape, an undeniable dispute in recent times is the ‘rough-sex debate’ and how women’s rights continue to subside against the rights of men. The wording of the press surrounding the recent murder of Grace Millane is enough to highlight the social construct that women are inferior to men and incapable of being autonomous beings. Newspapers described Grace as ‘Naïve’ after she was choked to death by her sexual partner. The entire focus of the case is exasperating; the court focused on Grace’s sexual history and use of dating apps, shifting responsibility from her murderer. It is not uncommon for the defence in these cases to claim that the victim ‘consented to violent sex’, allowing women to be blamed for their own assault or death. Liberal Feminism argues a concise critique to the rough sex debate; that women are autonomous individuals whose rights should never be suspended or elevated.

In conclusion, although men and women are biologically different, any legal instrument that promotes and bolsters these differences will fail in its attempt at equality. For the foreseeable future, incidents of discrimination both in a woman’s private and public life will continue in multitudes across the globe, no matter how aggressive and exhaustive anti-discrimination laws may become. However, with the perusal of a Liberal Feminist belief, that is through education and legal reform, our society may continue to evolve into one where discrimination on the basis of sex is increasingly unpopular. Clear improvement has been made since the early writings of 18th philosophers such as Blackstone, Kant and Aquinas, however we are far from a state of equality. One can only anticipate that the differences between men and women will no longer be used as points of discrimination within our legal and political system. In the judicious words of Plato –

“Is there any thing better in a state than that both women and men be rendered the very best? There is not.”

 

 

[1] Raymond Wacks, “Understanding Jurisprudence; An Introduction to Legal Theory” (3rd. edn. 2012, OUP) 300

[2] Immanuel Kant, “Of the Distinction of the beautiful and Sublime in Interrelations of the Two Sexes” [1961] CUP 30, 196

[3] Patricia Cain, “Feminism and the Limits of Equality” [1990] 24 Georgia Law Review 803

[4] Emily Jackson and Nicola Lacey, “Introducing Feminist Legal Theory” in “Introduction to Jurisprudence and Legal Theory: Commentary and materials” J Penner (2002, Butterworths) 779

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