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Feminist Jurisprudence: An Evolution from Fixed Mindset toA Growing MindsetPranav RainaAssistant Professor & Division Chair, School of Law, Galgotias University,Greater NoidaShreya Solenkey4th Year BBA LLB (Hons.) from School of Law, Galgotias University,Greater NoidaAbstract:Feminist Jurisprudence includes the study of different strands of feminist theoryand the themes that have emerged and developed within feminist thought, as wellas the application of theory to issues that interest members of class. It is the law’sneutrality as the very mechanism that perpetuates injustices against womanFeminists embrace a view that attempts to challenge the existing legal status byfocusing on what kind of institutions and laws would be necessary to redress theimbalance against woman in society.67 It is the very core of our society that thefeminist jurists question. They argue that we must look at the norms embedded inour legal system and rethink the law. What is "equality" or an "injury" in light ofbroader understandings of those norms?1. IntroductionFeminism is a set of movement seeking gender equality, a movement to changesocial, political and economic rights such as equal wage and the right to access tohealth and education, and equal political rights. In India some of the prevalentissues which are to be curbed by feminism are issues related to employment,globalization, education, sex-select abortion etc. Despite its efforts, feminism inIndia is criticized as the movement has special focus on women who are alreadyprivileged and the needs of lower caste women are neglected.2. Feminist JurisprudenceFeminist Jurisprudence includes the study of different strands of feminist theoryand the themes that have emerged and developed within feminist thought, as wellas the application of theory to issues that interest members of class.68 It is the law’sneutrality as the very mechanism that perpetuates injustices against woman69Feminists embrace a view that attempts to challenge the existing legal status byfocusing on what kind of institutions and laws would be necessary to redress theimbalance against woman in society.70 It is the very core of our society that thefeminist jurists question. They argue that we must look at the norms embedded in67George D. Pappas Jurisprudence Lecture Feminist Jurisprudence February 2006, Esq.International Center for Legal Studies page 1368Feminist Jurisprudence (Law 815-001 A and B) Fall 201069George D. Pappas Jurisprudence Lecture Feminist Jurisprudence February 2006, Esq.International Center for Legal Studies70George D. Pappas Jurisprudence Lecture Feminist Jurisprudence February 2006, Esq.International Center for Legal Studies page 13Amity International Journal of Juridical Sciences (Vol. 5, 2019)Page 32

our legal system and rethink the law. What is "equality" or an "injury" in light ofbroader understandings of those norms?71Feminist Jurisprudence helps to points out that what is neutral or natural for oneperson is a distortion for another person. Pregnancy, child rearing and othercaregiving activities are still treated in the workplace as peculiar occurrences,rather than what they are: commonplace functions that serve the larger good.72The pervasive influence of patriarchy on legal structures, demonstrates its effectson the material condition of women and girls, and develops reforms to correctgender injustice, exploitation, or restriction73Promoting freedom and equality for women reflects a profound shift in basicassumptions about the nature of women and their proper place in the world: a shiftfrom inequality to equality of the sexes, along with re-examination of whatequality itself requires.3. Origin and Historical Background of Feminism and FeministJurisprudenceIn India, basically there were three phases of feminism. Unlike the western world,the feminist movement in India was actually initiated by men. The efforts of themen lead to abolishment of Sati practice in India. It was meant for the upliftmentof women so that they can join forces with others in the freedom struggle. Postindependence as the Constitution of India guaranteed Equality between sexes,there was not much of an uproar about equality as the roles, functions, aims anddesire of women were different. With the increase of globalization and the conceptof personal rights, feminism has taken a new shape in India. It is further explainedas1850-1915The colonial venture into modernity brought concepts of democracy, equality andindividual rights. The rise of the concept of nationalism and introspection ofdiscriminatory practices brought about social reform movements related to casteand gender relations. The first phase was able to uproot practices such as Sati andremarriage of widows, forbid child marriage, reduce illiteracy etc.However, efforts for improving the status of women in Indian society weresomewhat thwarted by the late nineteenth century, as nationalist movementsemerged in India. These movements resisted 'colonial interventions in genderrelations' particularly in the areas of family relations. In the mid to late nineteenthcentury, there was a national form of resistance to any colonial efforts made to'modernize' the Hindu family.741915-1947The second stage nationalism became the pre-eminent cause. Gandhi legitimizedand expanded Indian women's public activities by initiating them into the nonviolent civil disobedience movement against the British Raj. He exalted their71Juergens, Ann, "Feminist Jurisprudence: Why Law Must Consider Women's Perspectives"(1991). Faculty Scholarship. Paper 111. , Leslie and Smith, Patricia, "Feminist Philosophy of Law", The Stanford Encyclopediaof Philosophy (summer 2015 Edition), Edward N. Zalta (ed.), URL /feminism-law/ .74Gangoli (2007), pages 88–89.Amity International Journal of Juridical Sciences (Vol. 5, 2019)Page 33

feminine roles of caring, self-abnegation, sacrifice and tolerance; and carved aniche for those in the public arena.Also, national level organizations such as All India Women Conference (AIWC)and the National Federation of Indian Women (NFIW) came up in the secondphase. These organizations aimed at issues relating to women’s political rights,leadership and roles in parties etc.POST INDEPENDENCEPrior to independence the women in India did not question the societal status ofwomen. They did not question the various roles that were especially made forwomen. This change was seen after independence with the increase ofwesternization. The opportunities were demanded for both the genders. The stateof Kerela in this regard is much advanced as compared to other states. This statehas the highest literacy rates and traditionally, before amendment in the HinduLaw, it was a common practice to give daughters and wives a portion of theproperty.FRENCH REVELOUTIONIt is one of the most important revolutions in the world. A unique feature of thisrevolution is the influence of women. The position of woman within the contextof the French Revolution, and political liberalism, e.g., Divorce and InheritanceLaws75. Liberty. One such example is the historical Women’s March on Versailles,on 5 October 1789 crowds of women began to assemble at Parisian markets. Thewomen first marched to the Hôtel de Ville, demanding that city officials addresstheir concerns. The women were responding to the harsh economic situations theyfaced, especially bread shortages. They also demanded an end to royal efforts toblock the National Assembly, and for the King and his administration to move toParis as a sign of good faith in addressing the widespread poverty.4. Feminist Jurisprudence and Other DisciplinesFeminist writers criticize the inherent methodological framework used by suchlegal positivists as Austin, Hart and Kelsen. As such, traditional command theoristlike John Austin, for example, are questioned for their narrow framework ofcommand, obedience, and sanction as the essence of the law. Theory of LegalPositivism and Rule of Law is also criticized by feminist jurists.Contemporary feminist philosophy of law also draws from diverse scholarlyperspectives such as international human rights theory, postcolonial theory, criticallegal studies, critical race theory, queer theory, and disability studies.The view of various jurists are taken into consideration. Each of them have theirargument against the current system, they are as under: 1. Carole Pateman argue that, “traditional jurisprudence treats citizenship aspatriarchal constructed in the masculine image”.“The story of the original contract shows how sexual difference gives riseto a patriarchal division of labour, not only in the conjugal home betweenthe (house) wife and her husband, but in the workplaces of civil society.”(The Sexual Contract, Pateman, pg.340 Hilaire Barnett).7675Jurisprudence Lecture Feminist Jurisprudence February 2006 George D. Pappas, Esq.International Center for Legal Studies Page 1076Jurisprudence Lecture Feminist JurisprudenceFebruary 2006 George D. Pappas, Esq. International Center for Legal Studies Page 4Amity International Journal of Juridical Sciences (Vol. 5, 2019)Page 34

2. Catherine MacKinnon sees maleness as the organizing form of what isaccepted as “normal.” MacKinnon is very critical of most forms ofequality legislation for being vehicles of making woman as men, ratherthan searching for true equality.“Seeing sex equality questions as matters of reasonable or unreasonableclassification is part of the way male dominance is expressed in law. Ifyou follow my shift in perspective from gender as difference to gender asdominance, gender changes from a distinction that is presumptively validto a detriment that is presumptively suspect. The difference approach triesto map reality; the dominance approach tries to challenge and change it. Inthe dominance approach, sex discrimination stops being a question ofmorality and start being a question of politics.”77MacKinnon's ideas have been influential. She is credited with developingthe now orthodox idea that sexual harassment in the workplace is a formof discrimination. Until the latter half of the '70s, sexual harassment on thejob was not considered an actionable injury to women, and several nationalstudies showed that it was very common.783. Carol Gilligan, a social scientist who sparked much of the thinking that werefer to as Feminist Jurisprudence. Gilligan wondered why girls andwomen consistently scored lower than boys and men on tests for moraldevelopment. She found that the scales for measuring moral developmentwere developed by men researchers using male subjects.794. Margot Stubbs, sees feminist jurisprudence as transcending the positivistconceptual framework of both liberal legalism (e.g., the rule of law) andMarxist (e.g., law as reflection of the bourgeoisie class that is the capitalistsuperstructure). Feminist jurisprudence seeks to make the connectionbetween Hilarie Barnett’s “woman question” and “the law”. 805. John Rawl’s “Theory of Justice,” in 1972. Essentially, Rawl’s postulatesabstraction to ‘pure reason’ in man’s original state, where participants areignorant of their self-interest, desires, etc. Rawls calls this a “veil ofignorance”. Only by stripping people of their individuality, according toHilare Barnett (“On Feminist Jurisprudence”), does Rawls consider theprinciples on which society and laws should be based. Yet writers such asMari Matuda criticize Rawls for avoiding real earthly issues816. The Father, the Son and the Holy Ghost” are completely in the image ofman. Perhaps there is hope yet, since the ghost may yet be a woman!Recent writings such as “Woman in the Bible”, “Who wrote the Gospels”and others, have argued that the Catholic Church’s attempt to completelydishonor and discredit Mary Madeline as not only Jesus’ Wife, but as awoman with extraordinary intellect and commercial savvy. It was Mary,not the other disciples, who first saw Jesus upon his resurrection. The maledominated church has done everything in its power to remove Mary fromtheir religious texts and condemn her as a whore to scorn into eternity8277Ibid page 5Juergens, Ann, "Feminist Jurisprudence: Why Law Must Consider Women's Perspectives"(1991). Faculty Scholarship, Paper 111. risprudence Lecture Feminist Jurisprudence February 2006 George D. Pappas, Esq.International Center for Legal Studies Page 682 82Jurisprudence Lecture Feminist Jurisprudence February 2006 George D. Pappas, Esq.International Center for Legal Studies Page 1278Amity International Journal of Juridical Sciences (Vol. 5, 2019)Page 35

5. Feminism and Feminist Jurisprudence in IndiaFeminism in India is a set of movements aimed at defining, establishing, anddefending equal political, economic, and social rights and equal opportunities forIndian women. It is the pursuit of women's rights within the society of India.Feminism can also be understood by way of religions.HINDU FEMINISMIn the Hindu religion, there has been partial success in terms of genderequality reform laws and family law. While this is a major advancement relativeto other religions in India, it is still not a complete triumph in terms of feminismand relieving oppression.83Due to various castes in the Hindu religion, the struggle for feminism hasconverted into a struggle for equality of castes. It has been seen that women froma higher caste seen to benefit more from feminism than the lower caste women.ISLAMIC FEMINISMA table turning event was witnessed as a win for feminism in the historicaljudgment of Shah Banos’s case84. Shah Bano, a 73-year-old Muslim woman, wasdivorced by her husband after forty-three years of marriage. According to theSharia or Muslim Law, her husband was not required to pay her alimony. ShahBano challenged this decision in the Supreme Court, which ultimately ruled in herfavor and ordered her husband to pay her a mo