The emerged of feminist jurisprudence
Prior to the emerged of feminist jurisprudence, women in the earliest age were raised with the understanding that they should not have self-will nor govern by self control but full submission and yielding to the control of man is their ideal character, as said by John Stuart Mill. He also said that women's thought at that time were poisoned by these differences and thus it became a confinement in all the area of public life, which frustrates the society as a whole. Due to these beliefs, women at that time were frequently oppressed by man, and Mill even compared women at that time to slavery.
When feminist jurisprudence emerged, it is always about changing the law for the better of women and what the law ought to be. The idea that law must be changed is because there are assumptions that somehow law reflects social relationships, especially the inequality between women and man, and for many of the feminist, this has become an aspiration for them to change this inequality. However, the feminist's view of what law ought to be comes in different perspective although it generally involves challenging the existing method of distributing power among man and women. For radical feminists, they tend to look at the transformation of ideological and institutional structures. Unlike the liberal feminists who believed that law was equality, radical feminists believe that by just giving more rights and power for women through law is not enough to make changes as the thinking of the society still remains the same. Therefore, they believe that the best way to change the society is to go to the root. Most of the radical feminists fight for women's right through a small group that forms spontaneously and all members of the group entitled to the role of decision making and leadership. However, there are also certain active groups that demonstrated with enormous energy by using different types of methods to raise public awareness. Those groups such as Redstockings, The Feminists, Radicalesbians, New York Radical Feminists and the Furies demonstrate their thoughts through journals, books, articles and much more. Among all these groups, Redstocking are the most outstanding with their slogan “to achieve final liberation from male supremacy for all women”, and they also declared in one of their manifesto that “our oppression is total, affecting every facet of our lives”.
Due to the facts that there are many groups of radical feminists, they are not as unified as the liberal feminists. Although there are many disagreements among radical feminists themselves, still most of them instead of focusing on equality, they focus on differences that exist among man and women, and they also support to challenge inequality with affirmative measures. First of all, women was classify as a class which had been dominated by men, which is classify as another class and the famous radical feminists involved in legal academy include Christine Littleton and Catharine MacKinnon. Littleton's thesis of argument was known as “equality of acceptance”, where she argued that the concept of sexual equality should be reconstructed as she believed that this concept would portrait the differences of women from man. She believed that in order for the society to accept the differences in women, more things should be done such as accepting differences of women which include “her identity, her specificity, and her difference from man”, instead of just knowing what are the differences between man and women. According to Patricia Cain, the thesis of “equality as acceptance” will only be successful when the differences of women from man became costless. The example that she gives is the issue about pregnancy in workplace where she argued that employers were asked to make accommodations for pregnant workers which causes the pregnant workers to be viewed as not normal due to the special treatment. The point that she is trying to make here is that if women had the equal rights to participate in the design of the workplace from the start, pregnant workers will be viewed as normal to other people as there will not be any special treatment required for them.
Radical feminism was said to have form around the 1950s, but through research, the idea of radical feminism can be traced back to the 1750s where Mary Wollstonecraft voice out to fight for the economic independence for women through her work ‘Vindication of the Rights of Women' in 1759. Then, in 1830, the first black feminist, Maria Stewart argued that the law regarding sexual and racial discrimination should be changed as she believed this is the root that causes women's oppression, and in 1880, another feminist, Elizabeth Cady Stanton, stood up against the law of male sexual rights on women and also the religious justification in regards of women's oppression. As the ideas evolves through times, the radical feminist in the twentieth century came up with a few basic ideas on their theory. One of the idea that the current radical feminists claim was ‘personal is political'. They believed that due to the politics, the law tends to cover up all the injustice that women were experiencing and they also regards all the things suffered by women as a private issue should be proclaim as an actual political issue. They argued that when the public were kept away from knowing the private issues of women, this is a reflection of male domination.
Besides this, there are some radical feminists who put the blame of male domination on patriarchy which they believed, influence women through psychology, biology, and violence. The psychological analysis that the radical feminists came up with for male domination was that the education of oppressive patriarchal messages were doing a severe damages on women psychologically and they also argued that controlling women through their psychology is the most important and basic component that give success to patriarchy systems. However, there are some radical feminists, such as Shulamith Firestone who think that the factor of psychology is not enough to form the patriarchy system and therefore turned their view to biology. She argued that women being able to give birth to a child are considered difference from men on the terms of biology and this is the reason that men had been using to gain control over women. So, she suggests that women should abandon natural birth and start using technological reproduction, and only in this way, women can be freed from being defined as difference from men. However, the theory of women should abandon natural birth were largely opposed by many other radical feminists as they believed that if the law allowed women to stop giving birth naturally and use test tube in replacement, this will only make the matter worst. Those who disagree with Firestone's theory argued that the field of technology were already being controlled in the hand of men, and if the law of women must only give birth through technologies were imposed, instead of freeing themselves from men, they would now be under the full control of men. Firestone also believed that the law of marriage is also another method created by man to dominate women and this law should be changed. There are many radical feminists who also opposed to marriage as they said that according to the traditional definition of marriage, women are bound to be tied to serve others interest instead of their own.
As for radical feminists who believed that violence against women was the cause of men domination, they normally studied this cause from the aspect of physical and sexual assault. According to them, they said that an act of violence towards women by men is due to the urge of domination and control. One of the radical feminist who fights for the rights of women through this aspect was Susan Brownmiller. She argued that women are being controlled by men socially and politically by the fear of being rape and therefore, based on this reason, she insisted that the law should not allowed pornography and prostitution to be legalized as both of these promote an phenomenon of rape because it somehow will degrades female body, which is very dangerous for women. In the eye of most radical feminists, all these actions that are violence against women are reflecting the desire of domination and controlling of men towards women. Susan Brownmiller also did write a statement in a book of hers that “men rape simply because they can, because they have the structural capacity to rape and women have the structural vulnerability”. At those time, there are no law that exist to protect women from sexual assault or oppression by men, women lived in fear and many safe houses were built for women to escape from being victimized by men and in those period, there are also abortion policies which forced women to go through dangerous procedure of abortion illegally, without governing by any law. All of these were considered as an act of violence against women by radical feminists.
It is fully recognized by the world that the most familiar radical feminist who focused on the law of sexual violence towards women would be Andrea Dworkin. When she committed herself to be a radical feminist, the feminist movement at that time was focusing fully on the Roe v Wade case, where they were fighting for women's right to be entitled with educational and career attainment. However, Dworkin did not show much interest in this but she turns her focus into other issues that also concern women's right where she is now famous for her achievement on the law changes and public awareness regarding pornography and sexual violence. She argues that pornography was used as propaganda of violence through the enforcement of patriarchal control. In the eyes of Dworkin and other radical feminists, they believed that rape is not just merely an act of violence against women, but it was also a terrorist act and a political crime. She also argued that, as long as the patriarchal system still exist, women's sexuality can only be used to meet men's need but never it can be used to meet women's need. Due to this, women are presented as sexual objects in pornography which is why she insisted that the law should not allow any form of pornography to be legalized.
Working together with Dworkin on the aspect of anti pornography legislation was also another famous and influential radical feminist, Catharine A. MacKinnon. MacKinnon argued that the liberal equality arguments will not be successful as men defined women as different. In her view, “an equality question is a question of the distribution of power”. The most significant difference of men and women are the difference of power they possessed, as women were dominated by men, and that the power has been controlled by men for a very long time where the law has completely forgotten that women actually exist. From her point of view, the theory of equality was basically focusing on those parts of law which involve public issues such as pregnancy in workplace, and it completely forgotten about the real experience that women actually go through in their lives such as rape or some other types of sexual assault. Therefore, she argued that the law ought to bring an end to inequality of power, and that the law should also be protecting women against all forms of sexual harassment including rape or being battered by men, and that it should also go to the extent that pornography should be banned, as pornography was mostly “male-created” and it portrait a meaning which tell the world that women is an sexual object. She also claim that voluntary sexual activities equal to rape as the border of coercion and voluntary consent is not clear in the society which is dominated by men, patriarchal and heterosexist. This claim was almost similar to another radical feminist, Robin Morgan where she states that “I claim that rape exists any time sexual intercourse occurs when it has not been initiated by the woman, out of her own genuine affection and desire”.
However, Morgan believed that an anti pornography law is not an appropriate censorship but instead of censoring pornography, she said that it “should just be helped not to exist by any means necessary”. Besides Morgan, there are also some other radical feminist who disagree with the work of Dworkin and MacKinnon, such as Alisa Carse. She argued that it is true that pornography is doing a lot of harm to women, but if it was to depend on the law to solve this problem, then it is destined to be a failure. Her suggestion was instead of depending on the law, the society should be educated to fight against pornography as she said that pornography may come in different form such as advertisement or romance novels which will not be govern by the anti pornography statutes. Radical feminists tend to make consensus decision rather than following the majority, and they are determined to destroy all existing hierarchy. Research shows that radical feminists are extending their thoughts beyond the one hierarchy which they were fighting to destroy, which is the sexual hierarchy. They are now arguing that whichever hierarchy that are form based on gender, class, or race should also be destroyed.
Other than these few radical feminists who fight for women's right in the view of changing the law on sexual assault, there is another radical feminist by the name of Susan Estrich, a feminist law professor, who spent most of her lifetime fighting for the reform of the law regarding rape and protects women against sexual harassment. Before the law on rape was reformed, the evidentiary criteria for rape cases are a reflection of male-biased understanding of in what situation where women would give sexual consent. In practice, the criminal justice system implies that unless women show forcefully resisting, they are always in the state of sexual consent. After being criticized by feminists, changes have been made in regards of sexual consent, such as the rape shield laws. However, many feminists are not satisfied with these changes as it only narrows the evidentiary criteria of consent. Therefore, Susan Estrich in her book entitled ‘Real Rape' criticized the court “to admit only physical resistance to force as evidence of non consent on the grounds that it permits passive but unwilling submission to sexual activity to be seen as consensual participation, and essentially precludes women from establishing their non consent in date rape trial”. This powerful criticism has led to further reform on the law, for example, Antioch College's ‘Sexual Offence Policy', where the absence of oral consent will supplants the physical resistance as the most important evidentiary criteria for sexual non consent.
Although not everyone agreed with the theory formed by radical feminists, it is clear that they did somehow managed to impose a more comprehensive view in sex, gender, and reproduction. There are some issues about gender roles that radical feminists had voiced out and that it was successfully being taken seriously by the society and they manage to change it through the law or through the view of society, where some of these small changes are now part of our lives where it just seems to be so normal that we do not even realize that it was once an issue and was regarded it as male domination. For example, during the early age, people used to say ‘man and wife', which at that time the phrase is actually referring to a human, which is man, and a role, which is the wife. The achievement of radical feminists was more than that. Radical feminists exposed the facts that sexual assault (including rape), pornography, women battered by men, and prostitution are something to be taken seriously from the society. Through this aspect, they fought for the rights of women and trying to free women from men's oppression. Although there are many people who criticize their theory or disagree with them, it is undeniable that today, many law on this aspect has been changed. Women today are living in a society with better protection from the law, even though in the beginning, Dworkin and MacKinnon did hand in the bill for anti pornography in the states of Minneapolis, which was passed twice by the city council but was vetoed by the mayor on both occasions.
The movement of radical feminist has also brought a large influence to women in Anglo-American-European axis, but where it is recognized that women has gain many rights in law and their status in the society has been changed, but it is also recognized by the society today that there are still many areas in live where women have to suffered because of the unequal power they possessed comparing to men. In 1983, Elizabeth Wilson published a book after the radical feminist's campaign on rape, pornography, incest, domestic violence and prostitution. This issue in this book which discusses the violence faced by women and the solution to it is still widely agreed by the society even though some of the issue in the book seems to be out dated as the law, such as law on or around rape has changed in many places, including United Kingdom. Although many law has been changed for the benefit of women around the world, and many public awareness has been raised due to the campaign of radical feminists, research shows that until today, there are one out of three women in these world are being abuse whether by coerced into sex, beaten or some other methods.
It is clear that many of the radical feminists ought to change the law on sexual assault as most of them view sex as the main fact that supports male domination. However, there are other radical feminists like Lenore Walker who fought hard for the battered women syndrome to be trial in court as law. Her contribution for the society began with her books entitled ‘The Battered Women' that raise public awareness that the law should also protect those women beaten by their husband or men, and suffered from Battered Women Syndrome as a result. Following the publication of this book in 1979, a formulation of survivor therapy was form for survivor of interpersonal violence. According to Walker, women who suffered from this syndrome become psychological hostages by going through several repeated violence and this will cause women to learn helplessness, which also at the same time causes them to minimize the pain and ensure them survival. Many people regards Walker as a reformist feminist based on her works but actually, her view is consistent with the idea of radical feminists by placing the blame of battering women on the “andocentric need for power” and the urge of men to control women. Walker is known best for her work as helping battered women through therapy but she is also very active in shelter movement, and advocating changes within the police department and legal practices. She is also the person who successfully influences the court to accept battered women syndrome.
In conclusion, due to the facts that radical feminist are not as unite as liberal feminist and therefore, they can be divided into categories with different aims. However, all of them have that same common acknowledgement that in order for the society to be a better place for women to live in, the law of the society must be changed. Unlike liberal feminist, they focused solely on changing the legal system, whereas for radical feminists, they tend to look at changing the root of the social structure. They believed that instead of changing the legal system, the ‘law' that was imposed in the society was the main cause of male domination, such as patriarchy system. Radical feminists argued that if the patriarchy system were not destroyed, the status of women in the society will not be changed for good even though many rights were given to them in the legal system. They believed that once the patriarchy system collapse, only then women can be truly freed from men or have equal power with men. Many of the radical feminists were also fighting to change the law on sexual assault, pornography and violence in the form of battering for the protection of women. In their view, when the law was imposed for the protection of women, the society will show some respect to women. However, there are still some of the radical feminists who do not believed in this theory, as they believed that only by giving education of showing respect to women and treat them as a human being to the society, then the patriarchy system will be destroyed and women shall enjoy equality with men.