Does the Law Enforce or Remedy Sexual Inequality?
Law is a system of rules and principles that are formulated and established in a community by the society or governmental agencies to regulate human’s behaviors. It has been defined as an authority which enforced the role of justice and equality, regulating and ensuring individuals in the community to always adhere to the will of the state. Law governs and regulates social relations through the principles of natural, moral and civil laws; which should apply to all human beings living under the same social community regardless of their sex, age or social status, etc. However, that’s not always the case. Historically, due to the fact that most law was made by the man, women have experienced huge sexual inequality. Things have changed and improved as the development of the society, where people tend to focus more on the sexual equality of each human being, but it is still hard to say whether these changes of the law really remedy sexual inequality in women, or in the opposite, enforce and even brought new inequality towards both women and men. In the following paragraphs, I will mainly discuss this issue focusing on Catherine MacKinnon’s “The Liberal State”, and Kathleen Kenealy’s “Sexual Harassment and the Reasonable Woman Standard”.
Sex is the division of male and female. Sexual inequality is a term that need to be further defined before considering whether it exists, and whether the law has any impact on it. Sexual inequality claimed that men and women are not treated equally, which influence the vulnerable sex’s living experience. To be sexual unequal, the relationship between sexes, usually men and women, should have a powerful and unequal distribution, with one sex has more political, social and legal advantages and power than the other as groups and individuals. The inequalities mostly occur in the social and the legal contexts, which are distinct, but mutually inclusive of one another. In this essay, I will mainly discuss the inequality between men and women under legal context to seek whether the law enforces or remedies sexual inequality.
To discover what law does about sexual inequality, I believed that investigations should begin first by looking at sexual inequality on its own regard, which means without the reference and interference to law. It is obvious that sexual inequality exists and has been enforced by the legal system. However, this should not be accused and confused as the idea that law is inherently sexist and unequal, instead, it should be accused on those who use, operate and benefit from the legal system. Since women have been historically controlled by men in both social and legal contexts, men are those who maintained and benefit from the sexual inequality, and used law to achieve their goal. Feminism is a social and political movements performed by people to establish and achieve sexual equality of sexes. MacKinnon claimed in the “The Liberal State” that feminism has not addressed a gender specific theory of social determination in the relation between state and society, which made it lacks a jurisprudence. Because of the lack of substance of law, feminism would help us understand how law works as a form of state power in the social and legal contexts where power is gendered, mostly benefiting the male (MacKinnon, 260). Feminism has been left with alternatives either to be improved by the state working as a primary tool without analyzing as male, or to be left to civil society resembling as a state a nature. As a result, the feminist posture toward the state has been transferred into issues central to women’s status, which should be analyzed through the liberal state (MacKinnon, 260-261).
Sexuality inequality is generally defined as the difference in how an individual or a group of people is treated or viewed because of their sex. This typically refers to the differential treatment with blind discriminating or condemning to a single sex, which would bring unequal consequences towards that sex group, rather than those start with the purpose of logic and being enough reasonable. For example, women have more days for their maternity leave than the men due to their physical injury. In this case, it is unlikely to say that the men are suffering from sexual inequality. MacKinnon has provided several examples of how sexual inequality exists. She addressed that “women have been economically exploited, relegated to domestic slavery, forced into motherhood, sexually objectified, physically abused, used in denigrating entertainment, deprived of a voice and authentic culture, and disenfranchised and excluded from public life” (MacKinnon, 261). Unlike women, these are not generally applied and experienced by men in their social life unless they are Black or gay. Women have always been told of what they can and cannot do by the men, who have viewed themselves as having jurisdiction and control over women, treating them as their own property to manipulate. MacKinnon argued that women have been “systematically subjected to physical insecurity, targeted for sexual denigration and violation; depersonalized and denigrated” and have been “deprived of respect, credibility, and resources; and silenced—and denied public presence, voice, and representation of their interests” (MacKinnon, 261). This has led to the result that women’s actions have been forced and limited to a prescription of what is appropriate for their sex to carry out rather than what they will themselves to behave in their social life.
Sexual inequality exists and is prevalence in the social and legal contexts, with the latter resulting from the former context. Social context is the basis of the society, where opinions, and views of morality and justness for the society are formed. The concepts of justice and morality are usually codified in the social context in the form of norms, in which are later formally formed into laws by the legal contexts. With the fact that social contexts played a role in determining the formation of the legal system, it would be better to investigate how sexual inequalities are related to social context if we want to find out how law acts in sexual inequality. From ancient times till now, men and women have been deliberately or unconsciously instructed that they have different roles and duties to play in the society; in which women were usually relegated to focus more on the family duty, while men were usually in charge of political and economic duties. MacKinnon argued that it is not the law which enforce the inequality to women, but rather it is the social norms, since “women are oppressed socially, prior to law, without express state acts, often in intimate contexts” (MacKinnon, 265). Because of the neglect of women’s rights in the social context, law, made and implemented exclusively by and for men in the public domain, enforced the sexual inequality on women by bringing more protection and benefit to men so that the men are equal to themselves. This leaves women without protection to the social context where “women are distinctively subordinated and deprived of power, has been placed beyond reach of legal guarantees” (MacKinnon, 265). This made the law enforced sexual inequality, since it was not equal from the beginning that law was made mostly by and for men’s own needs without the consideration of women. To remedy sexual inequality by law, women need to change the norms of their social roles and must take part in the formulation of law so that their rights could be protected.
Some law has changed with the purpose to remedy sexual inequality. Although it has expanded its considerations to include women in both social and legal contexts, making the legal system seemed to be fair and equal to every sex, even more beneficial to the previous inferior groups; law may still be sexually unequal. Men have controlled the legal system at each stage, including the creation, enforcement, and interpretation of law. Therefore, it made the law masculine, not because of any innate characteristic of the law itself, but due to the fact that it has been subjected to masculine inputs, providing masculine outputs. This made the application of law to women problematic, since they are not seen and treated as women by the masculine law, but are seen and treated as another version of men. The purpose of people who involved in the process of legal formation is to shape the law. Therefore, it is dangerous to let a single sex-group of people to dominant the formation and the use of law. If the law is mostly shaped solely by the masculine, the law will then be men’s dictates, which is unable to reflect the true nature of the society, but rather only shows the perspectives of the men’s groups. Just as what has been claimed by MacKinnon that “The state is male in the feminist sense: the law sees and treats women the way men see and treat women. The liberal state coercively and authoritatively constitutes the social order in the interests of men as a gender—through its legitimating norms, forms, relation to society, and substantive policies. The state’s formal norms recapitulate the male point of view on the level of design” (MacKinnon, 262). With men fully control the legal system, there is no doubt that sexual inequality exists in the process of the formation of laws, and is enforcing the presence of sexual inequality in the legal system. This could be explained in Kathleen Kenealy’s “Sexual Harassment and the Reasonable Woman Standard”.
The reasonable woman standard is a judicial application to workplace sexual harassment litigation, which accesses claims from the victim’s perspective, since the consideration of men may offended women (Kenealy, 270-271). This seems to be a reasonable and equal law that the judges could hear from the victims’ view, mostly women, making the conviction more equal so that law could help to remedy sexual inequality. However, this standard may represent a legal setback for women, which enforce sexual inequality. Kenealy argued that this standard is in fact an artificial intellectual construct which serves only to obscure and mask the problem of sexual harassment in the workplace rather than providing a framework of an effective legal response or solution. Therefore, the reasonable woman standard could be viewed as a mechanism to enforce a male perspective being defined by a male judiciary, which is likely to be constituted through the social norms created by men to women (Kenealy, 271). Sexual harassment is not a gender-specific issue only happens on women, but rather a gender-neutral issue which has more probability occurs on women. Men could also suffer from sexual harassment in their workplace, but there is no such a law as “reasonable men standard” exists. Under this situation, it appears that men are treated differently to women when considering the sexual harassment problem, which could be regard as sexual inequality enforced by the legal system. Sexual inequality would only be remedy if the courts examine the problem on sexual harassment without focusing on the gender of the victim, realizing that sexual harassment is not always perpetuated by males, but is visible and recognizable to men as it is to women (Kenealy, 271). In order to solve the issue of sexual harassment in workplace, courts should focus on the circumstances rather than the victim themselves, especially women. Both women and men could be the victim of workplace harassment. Therefore, to achieve the purpose of remedying sexual inequality, a workable legal standard ought to be gender-neutral (Kenealy, 273). Just as the sexual inequality appearing in the social contexts, what law could do to remedy sexual inequality is to focus more on the overall environment rather than fixing on the nature of the victim’s personal case. Kenealy has argued that it is false to believe the reason why reasonable woman standard exist is due to the fact that members of different groups have disparate sensibilities, which are unable to fully recognize and understand behaviors that is offensive to other groups; since this does not mean that they are incapable of understanding the reasonableness or unreasonableness of conduct in various social settings (Kenealy, 275). Thus, it is sexist to conclude a view that sexism, which cuts across humanity in all sexual and racial varieties, must or could only be the view from the eyes of a gender-specific group (Kenealy, 275); since it not only places this gender on a special stage of being different from other gender groups, but indicates that other gender groups have lack the ability to experience or observe the existence of sexual inequality as well.
Law has replicated sexual inequality through legal interpretation, since courts recreates the conditions of inequality from the social context. MacKinnon claimed that “the task of legal interpretation becomes to perfect the state as mirror of the society”, and judges are required to proceed to it as if they have no views. In terms of judicial role, courts should not impose their own substantive views on constitutional issues, and it is the judges’ job to “proceed as if they have no views, when they reflect society back to itself from the angle of vision at which society is refracted to them” (MacKinnon, 236-264). This indicates that law is being used as a tool by judges, mostly men, to achieve their particular goal, by the reflection of their own understanding to interpret the image of the society. As a result, when the legal system is almost exclusively masculine, meaning that the creation of the image of society is mostly men, it is reasonable to conclude that law made through the understanding of the society is highly unequal, which enforce sexual inequality; since all related processes were created and based on the favor and perspective of men. Therefore, in this case, even some law was created with the primary goal to remedy sexual inequality and to enforce feminism; the constitution of the members in the legal system may unconsciously add sexual unequal view during the process of forming new laws.
Although law appears to enforce sexual inequality, it still has some effort in remedying the inequality. Privileges or special law created by the legal system for the other sex is a good starting point in which shows that at least the court is realizing and aiming to change the issue of inequality. It is not law itself being sexually unequal, but rather it is those who use it enforce sexual inequality. Law is created with goals inherent in it which people are trying to achieve, rather than a natural thing. The reason sexual inequality exist is that men frequently use the law to maintain and uphold existing sexual prejudice through their control of the constitution, legislation and jurisprudence. Sexual inequality cannot be broken unless women are equally presented and considered by the law. To remedy sexual inequality, women need to present as much as they can in the process of lawmaking by holding an equal perspective and neutralizing men’s views progressively.
Overall, it is not law itself enforce or remedy sexual inequality, but rather the groups which create the law. At least at present times, this made law appears to enforce sexual inequality more than to remedy it, but could be changed if women take more part in lawmaking and penetrate more equal views.
- Dyzenhaus, David, et al. Law and Morality: Readings in Legal Philosophy. University of Toronto Press, 2007. p257-275
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