Free 2.1 Law Essay
The behaviour of women is often explained through the processes of the female body nothing else?
I. Introduction
This essay endeavours to investigate established feminist theories vis-à-vis the interpretation of behaviour of women via the processes of the female body. Depicting the relationship between feminist legal theory and the attitudes of socio-legal institutions towards women as mere ‘bodies’ requires a historical study of women and the legal system. In today’s atmosphere of feminist legal theory being tentatively masked by legal pluralism, it is often difficult to discern the reality of their role within the legal system as well as answer the proposed hypothesis in question. Although, the conceptual differences amongst feminist legal theorists are on the one hand very sparse or sporadic, they seem to be united in at least one basic belief: that society is patriarchal. Indeed, theorists have created offshoots of Marxist’s theory of equality by examining all factors that relate to differences between man and women. These fundamental differences include, differences in employment, a women’s role within the family unit, the burden or hindrances of reproduction, their lack of power in society or the hierarchal structure of business, politics or the academia and perhaps most importantly, the biological differences that determine man from women.
Feminist legal theory is often considered as having altered over time to encompass critical legal studies movements, as well as classical and post classical theories of jurisprudence. Duncan acquaints this with the large-scale liberalisation in terms of sexual harassment movements in the 1970s. Marxist envisaged that all things being equal, women would be treated the same as men similar surroundings. Maguire directly associates the mindset of a female in the context of crime with their ability to conceal their menstrual cycle and the correlating ability to lie or falsify an orgasm. Such references of female behaviour in terms of their physical traits will be explored and conferred I order to reconcile the anatomical features of the female with their behaviour. In addition, I intend to examine females as legal entities apropos their limited legal rights in certain spheres, their conventional placement in the family home and the legislation that vindicates prostitution, an act that is restricted to females only.
It is often women’s portrayal in history, written from a patriarchal point of view that defines their boundaries within society. Despite pluralistic values that are imposed on modern society, some argue that history has embedded attitudes towards women causing a reaction in their behaviour rather than as a feature of their biological make-up. Nonetheless, to determine the extent of women’s behaviour being defined entirely by their bodies will require an in-depth consideration of historical factors of feminist portrayal, the female role in society and the links between female behaviour and their anatomy.
II. Prostitution: The female body and the law
Smart has severely criticised the failure in legislative bodies of shrouding prostitution as an act only capable by women. Much has been written on the premise of female sexuality, prostitution and the law. Indeed, it has historically been uniquely associated with the wrongdoing of a women and been criticised as being a double standard of sexual morality. This distinction of criminality being associated directly with the immoral usage of a female’s body for sexual purposes has been traditionally restricted to females. The Sexual Offences Act 1953 (SOA 1953) directly discriminates woman from man in that it fails to criminalise the loitering and soliciting of males for the purposes of paid sex. Indeed Smart recognises a three-fold argument for the promulgation of such laws. Firstly, the female is largely seen as a legal character that in a social construct is defined as being refined in nature, secondly it is a women’s job to bear children and set a moralistic example with sound values for their children and thirdly loitering and solicitation is not an act that should be seen on the streets. Commentators such as Dempsey claim that not only should legislatures seek to criminalise the behaviour because of its opposition with natural law, they should also criminalise male usage of prostitutes to bring about equality between man and women. Nonetheless, Smart claims that the SOA 1953 instils a hypocritical value of sexual morality. Having said this, the newly promulgated Sexual Offences Act 2003 (SOA 2003) is indiscriminate in refining an act of prostitution to women alone.
In conclusion to this sub-section of the essay, it would appear that the law with regards to prostitution has for long regarded some women, in this case prostitutes as natural persons with defined legal rights that are explicitly discriminate and characteristic of their behaviour emanating from the way they utilise their bodies for sexual purposes. Whilst the law has certainly changed, some academics believe that stigma of regarding the women with a varying scale of rights and privileges will prevail.
III. The female body and socio-legal behaviour
III. (i) The female genitalia
I have already discussed how one cross-section of women are either socially or legally (at least in a historical context) under the punitive inspection of the law as well as law enforcement. Such oppression need not be limited to prostitutes alone. Indeed, some post-modern writers are basing arguments on Freud by associating the female body with aspects of behavioural tendencies. Irigaray claims that "Female sexuality has always been conceptualized on the basis of masculine parameters." She states on the premise of Freud that the female clitoris is a "little penis" vis-à-vis giving a women a masculine or phallic sexual experience. This is further enforced by the reconciliation between male masturbation and female masturbation. She further argues that the “little penis” is inferior in comparison to its male counterpart as it is physically smaller and capable of less pleasure than an actual penis. Nonetheless, it represents masculinity. Conversely, she states that “If the female sex organ is the vagina, then it is passive, waiting to be filled with a penis in order to experience pleasure, rather than seeking pleasure itself, actively. Rather, vaginal female sexuality is oriented toward finding a penis--in a father/husband, in a baby, or in masculine social roles.” A psychoanalytical approach of Irigaray’s theory is to conclude that it is in fact the differences between female and male gentiles that procreate differences in behaviour by linking Freud’s theory that male heterosexual intercourse stems from the desire to get back into his mother’s womb, whilst female heterosexual intercourse is a violation of the females body as it is inconsistent with autoerotic pleasure provided by the two vaginal lips that are constantly pressed together unless “violated”. Arguably, such gentile differences and sexual tendencies may create an underlining psychological creation of women being “sexual props” and men being “rapists” or “violators.” Indeed the behaviour that is linked with the vagina is as Irigaray claims, passive whilst the behaviour of the heterosexual male is associated with a “go-getter” mentality. Both mindsets in fields of economics, politics and legal privileges are clearly defined between expectations of man and women. Smart points out that women who tend to succeed in economical, political or social spheres stems from a male ability to recognise and respect a women that has suffered. It is argued by Smart that it is only via suffrage, that females may succeed in these spheres by proving that they are as capable or indeed more capable than men.
III. (ii) Pregnancy
Savel is often regarded as being a pioneer in feminism legal theory. She depicts how the law applies itself to women with respect to the physical bodies especially in the context of a female as a mother. Kristin Savell’s “The Mother of the Legal Person” moves into the realm of feminist legal theory and examines how the law assigns meaning to physical bodies especially in the context of woman as mother. This is a fascinating discussion of the implication of the law protecting the foetus inside the legal person. Whilst masculine bodies are bounded by the criminal law, women are not necessarily regarded as bounded in a similar manner. One portrayal in society is how pregnant women are treated by the law. In the United Kingdom, the foetus of a pregnant women is not regarded as legal person until birth. Nonetheless, the mother’s control of her body is observed by various authorities to ensure that the foetus is properly protected. By recognising a foetus as a legal entity will have serious repercussions as a mother will have less control over her own body
Indeed Savel highlights that there “is a danger that recognising the foetus in law could result in oppressive paternalistic interference with pregnant women.” Arguably, women and the law and their behaviour as such is reinforced by the notion of child bearing on both in a legal sense and a patriarchal or family making sense.
It is from this idea that Fredman has based an argument that female behaviour in the law stems from their inequality in terms of their pregnancy or capability of becoming pregnant as a red herring for stigmatisation or exclusion from public life, high-powered positions or economics.
II. (iii) Physical Patriarchal disadvantage?
Some theorists have considered differences in genitalia, the reproductive system and attitudes towards prostitution. However, a simpler theory that has been uncovered and explored extensively by feminist theorists is that the sheer difference in body size is believed to place women at a physical disadvantage as men. To put it aptly, Alexandre states: “Male Domination of the Female body is the basic material reality
of women’s lives and all struggle for dignity and self determination
is rooted in the actual control of one’s own body.” Therefore, it could be argued that if women are able to resist feminine processes of their body, they could in effect be placed at a patriarchal advantage in society. Nonetheless, this thought is far more complex to be proven in practice. Personally, I believe the subliminal failure to accept women on equal footing to men stems from physical differences. Indeed some theorists explain that it is differences in physical appearances and attributes that cause racism, sexism and homophobia. A prominent idea that may underpin this notion in the sphere of homosexuality, is that women who possess severe masculine features such as strong jaw lines, muscular features and a like for other women are often frowned upon by men for trying to be equal in terms of masculinity and not accepting a subversive role in society.
III. Conclusion
Whilst Savel has considered the reproductive system of women being a major determinant in their behaviour and allocation in the patriarchal system, Irigaray delves into the philosophical works of Freud to conclude that women are subversive and passive as a reflection of their genitalia. Although this may be true, it is obvious that feminist legal theory has developed extensively to preclude women being treated inhumanely and uphold a variety of rights that progressively seek to place equality in our social construct. With the likes of Maquire, it is also possible that women, in the context of crime are capable of being deceptive, discreet and efficient in concealing their involvement in criminal activities. This, in itself is a perfect example of how the processes of a female’s body are used to explain aspects of their behaviour.
Bibliography
Alexandre, DANCE HALLS, MASQUERADES AND THE LAW: A
CALL TO REFORM GENDER BIASED LAWS IN
TRINIDADIAN JURISPRUDENCE, http://www.tjsl.edu/downloads/Michele%20Alexandre.pdf
Carol Smart, Law, Crime and sexuality; Sage publishing (1995)
Dempsey “RETHINKING WOLFENDEN: PROSTITUTE-USE, CRIMINAL LAW, AND REMOTE HARM” Crim. L.R. 2005, Jun, 444-455
Fredman, Women and the Law, (1992) Oxford University Press
Irigaray “"This Sex Which Is Not One" Poststructuralist Feminist Theory, http://www.colorado.edu/English/engl2010mk/irigaray.lecture.html
Kennedy, “Sexy Dressing” http://cyber.law.harvard.edu/vaw00/FeministJurisprudence.html.
Maguire, The Oxford Handbook on Criminology, (2002 3ed)
Savel, Visible Women” first cited in http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/sjames.htm
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