Q. What is meant by ‘patriarchy’ in the context of feminine jurisprudence?
The ideological struggle against patriarchy marks out the objective, arguments and methodology of feminist jurisprudence. Patriarchy is the social structure characterized by male domination, having an ideology which seeks to justify this arrangement and a legal theory which interprets the law from a standpoint characterized by a belief, explicit or implicit, in fundamental inequalities. It involves, essentially, the systematic subordination of women to men. The required answer should seek to define appropriate concepts and explain the reasons for the feminist movement’s hostility to much contemporary jurisprudence. The following skeleton plan is used:
Introduction – definition of patriarchy – male dominance
taken for granted – the negative aspects of patriarchy –
patriarchy reflected in the literature of libertarianism –
gendered patterns of legal language – conclusion, necessity
to challenge patriarchy in a variety of ways.
‘The rejection of patriarchy is the one point on which all feminists agree’, writes Patricia Smith, a leading theoretician of the school of feminist jurisprudence, a movement which seeks to erect a new philosophy of law on principles which involve the disappearance of patriarchal domination and the oppression and injustice said to be associated with it. An analysis of patriarchy, an examination of its history, its ideological content and, above all, its effect on contemporary jurisprudence and law in action, forms the core of the ideology of the feminist jurisprudence movement. The recognition and the rejection of patriarchy are viewed by feminist jurists as having revolutionary implications for society in general and for contemporary jurisprudence in particular.
Patriarchy is defined by Janet Rifkin in her authoritative essay, Toward a Theory of Law and Patriarchy (1980): ‘By patriarchy, I mean any kind of group organization in which males hold dominant power and determine what part females shall and shall not play, and in which capabilities assigned to women are relegated generally to the mystical and aesthetic and excluded from the practical and political realms, these realms being regarded as separate and mutually exclusive.’ The term ‘patriarchy’ was used in earlier times to refer to a system of society ruled by men, with descent through the male line; it is used today in a much wider sense, with specific reference not only to a society which is built on male domination, but also to the ideologies which seek to justify and stabilize this domination.
Law is not neutral in the patriarchal society: it exists upon the basis of acceptance (conscious or unconscious) of the systematic subordination of women, and its assumptions ‘uncritically assume a traditional male standard of what is normal’: P Smith. The legal ideology which underpins patriarchy is little more than ‘a medium for making male dominance both invisible and legitimate by adopting the male point of view in law at the same time as it enforces that view on society’: Mackinnon. Jurisprudential theory and legal institutions within a patriarchy provide a justification for the authority of men and symbolize the norm, which accepts that men and women must not be regarded as equal because this is ‘demonstrably not so’, and, therefore, women must be subordinate to men. Dominant legal ideologies within a patriarchy, the profoundly unequal role assigned to women in the administration of justice, testify to a legal process which is designed to ensure that the fact of male domination is seen as beneficial, natural and entirely inevitable: so runs the critique of patriarchy which is associated with feminist jurisprudence.
The key role of jurisprudence and legal processes within the patriarchy makes necessary a continuous, principled attack on contemporary male-dominated legal theory. Jurisprudence which is clearly seen to reflect injustice and discrimination will not survive for long: this view sets the agenda for feminist jurisprudence as a movement. It becomes essential for an explanation of the causes and effects of patriarchy that its underlying beliefs be understood and exposed, particularly in relation to legal scholarship and social practice. Mackinnon notes the significance of legal mediation in the patriarchal structure: ‘Through legal mediation, male dominance is made to seem a feature of life, not a one-sided construct imposed by force for the advantage of a dominant group … Coercion legitimated becomes consent …’ To challenge the seemingly ‘natural and eternal values’ proclaimed by the legal apologists for patriarchy can be the beginnings of loosening the grip on society of institutionalized discrimination and oppression; this involves attaining an understanding of the key features of the typical apologia for the institution of patriarchy.
A primary feature of patriarchy is belief in the general inequality of woman in relation to man. Biological and anthropological data are interpreted so as to suggest that there is a fundamental, ineradicable measure of sex inequality which has to be recognized by society and its legislators through social arrangements and legal theories. Laws protecting women, regulations establishing hierarchies embodying the ‘fact’ of male dominance, must be devised. Subordination is not equated with inferiority: it involves an acceptance of a natural, unalterable ‘fact of existence’. The patriarchy, argue feminist jurists, cultivates sedulously the ideology of ‘subordination as necessary protection’. To attempt to combat these views is to reject what nature has ordained; the propagation of points of view which question the meanings attached to the concept of inequality necessitates flying in the face of destiny. To query the basis of discrimination, in, say, employment law is to misunderstand ‘the true nature’ of men and women.
Wide acceptance of the veracity of the concept of inequality has led to the emergence within patriarchies of an ideology concerning women which reflects a wide gap between patriarchal descriptions of human nature (often underwritten by jurisprudential theory) and the true nature of women. ‘Feminists,’ says Patricia Smith, ’take women’s humanity seriously, and jurisprudence does not because the law does not.’ The Aristotelian concept of woman as ‘misbegotten male’, Tennyson’s line, ’Woman is the lesser man’, indicate patterns of thought which are alleged by feminist jurists to have surfaced in contemporary family law in relation to adoption, parental responsibility and some procedures associated with divorce. Custom and law have coalesced, it is claimed, so as to characterize men in one way and women in another, essentially inferior, way, with the result that mythology and misunderstanding concerning women are rationalized and legitimized by the patriarchal law and its institutions.
An interesting illustration of the attitudes of patriarchy in relation to social hierarchy and the law may be found in Filmer’s text on absolutism, Patriarcha, published in 1679–80. Filmer interpreted the state as a patriarchal society under the King. Subjugation of the wife and children to the father is seen in terms of a ‘divine institution’. Haslett, who edited the 1949 version of Filmer ’s work, noted that the patriarchal family has been considered by many politicians and jurists as an archetype of social hierarchy; law has acted as a tool of patriarchy, he avers, with one of its tasks involving the justification of subordination of women as part of ‘the natural order ’. The implications of patriarchal ideology are so deeply embedded in our culture and institutions that ‘male domination and patriarchal values have yet to be relegated to historical obscurity’.
It is the all-pervading nature of the ideology of patriarchy which presents feminist jurisprudence with an unusually difficult task. A sociologist associated with the movement, Dorothy Smith, writing on women’s exclusion from man’s culture, states:
The universe of ideas, images and themes – the symbolicmodes which are the general currency of thought – have been either produced by men or controlled by them. In so far as women’s work and experience has been entered into, it has been on terms decided by men and because it has been approved by men.
The power of patriarchal ideology is so strong, say the feminist jurists, that it has permeated our culture at all levels: jurisprudence, political theory, social and economic thought, were predicated over the centuries on an acceptance of customs, principles and rationalizations which delegated different roles to men and women on the ground that nature had defined the essence of those roles. The tortuous path leading to women’s political emancipation in the West was often blocked by appeals to legal precedents relying on ‘cultural patterns‘and a ‘natural order’ which enshrined a presumption of inequality. It was very difficult, and often impossible, to seek to envisage human society in terms other than those which embodied the idea of subordination of one sex as ‘natural’. No manifestation of social culture – education or artistic endeavour – was entirely free from this ideology of inequality.
Not surprisingly, according to feminist jurists and political activists, revolutionary circles which might have been expected to denounce patriarchy, were themselves affected by the negative aspects of its thought. Many early feminist jurists and social reformers were disappointed in the solutions proposed by leading Marxist jurists and political leaders for the problems arising from the phenomenon of women’s exploitation which had become embedded in law. Lenin’s statement in 1916 on the emancipation of women called for ‘the participation of women in general productive labour … the women will occupy the same position as men’. This declaration was viewed by feminists as not moving beyond the limited horizons of patriarchy and as suggesting a solution to women’s problems exclusively in terms of male created norms. The inability of Marxist jurists to perceive the effects of patriarchy ‘across and within classes’ (a phenomenon analyzed by Sargent in Women and Revolution) seems to have alienated many feminist jurists from the jurisprudential theories of Marxist scholars. The later experiences of women under Marxist regimes seemed to validate the perceptions by feminist jurists of ‘socialist equality’ as a patriarchal ruse aimed at the intensification of the degree of exploitation of women by the state.
Little is to be gained by women in the important task of understanding patriarchy from a study of the literature which has been considered as embodying the principles of libertarianism – so runs an argument associated with feminist jurisprudence. Almost invariably, it is argued, the texts have been written by men from a perspective which excludes a correct understanding of the nature of women’s role in society. All too often, the problems arising from subordination and institutionalized discrimination in the patriarchy are either not perceived or are studiously ignored. In Women in Western Political Thought (1979), Susan Okin considers the American Declaration of Independence and the Constitution. These celebrated statements of freedom have been phrased, she argues, in universal terms, but in the event they have been interpreted judicially on many occasions in the light of patriarchal ideology so that, objectively, women are excluded. ‘All men are created equal’ – here is a ‘self-evident truth’ proclaimed by the Founding Fathers. They would have been ‘amused and sceptical’, suggests Okin, had they been reminded that women, too, were to be considered ‘equal’. In a similar vein, Okin states that there has grown up a tradition under which resounding rhetoric concerning freedom, rights, equality, often tends to exclude women explicitly or implicitly.
The pervasive nature of patriarchal thought has been examined by some jurists who have discerned a distinctive trend towards the use of ‘a gendered pattern of legal language’. Lucinda Finley, in Breaking Women’s Silence in Law (1989), reminds legal theorists that the language of the law has been defined, shaped and interpreted largely by men, so that it reflects the legal reasoning and systems of thought associated with patriarchy and its legal ideology. ‘Law is a patriarchal form of reasoning, as is the philosophy of liberalism of which law (or at least post- Enlightenment Anglo-American law) is part.’ Privileged males have set legal norms reflecting ‘male realities’; they have expressed those norms within the framework of patriarchal Western liberalism in a linguistic framework which mirrors their background, culture and aspirations. The language of the law seeks to be ‘objective’, to abstract ‘legal situations’ from their social contexts, and to put matters in terms which relate to men and to which men can relate’. Recent modifications of statutory definitions of the offence of rape, in English and American law, have been described as exemplifying the limitations of patriarchal ideology which appears impervious to the growing concerns of women. Finley urges that in any consideration of legal change involving women, attention be given to the voice of reason and the voice of emotion. This may necessitate deliberate changes in the nature of legal discourse and the language in which it is generally couched. New modes of communicating, reasoning, evaluating, are required if the restrictive influence of patriarchal thinking and gendered language are to disappear from law. A re-examination of the terminology of the law, with the objective of removing ambiguities, erasing the traces of discriminatory attitudes, and allowing for the introduction of experiences, in the form of linguistic innovation, should be considered if legal language is to embrace the real needs of men and women who have been ‘disempowered or silenced … by the traditional [legal] discourse’.
In The Emergence of Feminist Jurisprudence (1986), Ann Scales argues that the carrying out of an important task is overdue, namely, the exposure of a legal language which is often used deliberately so as to express and uphold patriarchal ideology. The apparatus of formal linguistic analysis is irrelevant to this task: what is required is analysis from a feminist perspective, that is, an investigation by women of the purpose of language used in legal discourse within the context of contemporary patriarchal society.
Feminist jurisprudence interprets patriarchal society in unequivocal terms: it is fundamentally a society based upon a hierarchy which utilizes the paradigm of law as a symbol of the authority and dominance of the male. It must be challenged in ways which necessitate a thorough examination of its origins, institutions and ideologies (particularly in relation to jurisprudence). The weakening of patriarchy will be, according to the tenets of feminist jurisprudence, a per-requisite for the fabrication of a ‘new jurisprudence’ and legal institutions which will be needed for the introduction and maintenance of ‘the good society’ in which discrimination in social and legal practices will have disappeared.
The concept of patriarchy is discussed in Justice Engendered (1987), by Martha Minow; Jurisprudence and Gender (1988), by Robin West; and Reconstructing Sexual Equality (1987), by Christine Littleton. Frug’s Postmodern Legal Feminism (1992) provides material for an understanding of the social context for theories of patriarchy.