FEMINISM, DIFFERENCE, EQULITY AND LAW: A MATTER OF PERCEPTION


[This is a part of a lecture provided in Nepal Law Campus on the topic of Feminist Jurisprudence by Professor Jane Aiken. She is a Lecturer from Washington University and has recently arrived in Nepal in order to be confronted with the actual situation of Nepalese Women’s status and feminist movement in Nepal. She has been working on establishing a Social Policy Law Program – An Exchange Program for law students between W.U. and T.U. She has expertise in Law, has 19 years of teaching experience and holds a Master of Laws in Public Advocacy. She has been representing women who are victims of violence, Prostitutes, Women Prisoners, HIV affected women, Torts, Civil Wrongs, Evidence, Constitutional Law, Gender, Race and sexuality.]

 The Lecture

Feminism in U.S. started as a new conceptual change in terms of gender, society and equality where as in Nepal, clear discrimination against women can be evidenced. Law provides equality to every individual in every term. Each individual holds individual rights. Every person is free from being harmed and if harmed everyone can seek for justice; be it harm from state to individuals or form individual to individual. Every individual is thus autonomous.

 Liberty and Equality are two primary interests of a constitution. A constitution provides you with the right to liberty and right to equality. American constitution as well as Nepalese constitution confirms this notion. Critically speaking of law, law has been a reflection of the dominant classes and races. Traditionally too, conflicts are accused by dominant classes and races. Medically, these are all only about genetic disorders.

 Lets draw our attention towards Critical Legal Studies CLS. CLS, itself draws its theories from other theories like economic, social, cultural etc. CLS argues that only wealthy and powerful uses the law. The disadvantaged are only convinced of justice and that is all they get! CLS was an outcome of law scholars of Realist School of Law, of Legal Realism. They showed up with a new theory “Realist Indeterminacy Thesis”. It states that legal outcome is not a product of law-facts-precedents, as we have known normally; but statutes always drive it. Then ‘Why a legal system exists?’ CLS provides us with a possible answer that, it is important to have a legal system-a structure that makes people believe and thus decrease conflicts and reject notion of rights.

 Why a Feminist Jurisprudence (Legal Theory) is there? FJ is a result of CLS.  It was started from some ‘Anglo American White women’ (though it may have not represented the views of Blacks, then!). FJ express its views on laws of change – the way it should have been. There is a fundamental belief shared by all i.e. the law is written from a male point of view and it does not reveal women emotions and thus it disadvantages women. It is the law that expresses men and women to be different. The difference we are talking bout here is critical and needs our attention. The question of difference must itself be questioned. The difference is nothing but sophistication In Nepal, there is a rising question of change in the status of women. Why does such a condition exist? Isn’t it a product of vested difference on our minds? We must analyse the difference and identify the false assumption of difference whilst we sore our throat for Gender Equality.

 Difference Is Intrinsic  – Not A Comparison

Assignment of difference is arbitrary. We are all different from each other but the level of difference on some specific characteristic is important i.e. negative. Why treat a female sex different from a male sex? Why can’t we take it naturally? Sex, in terms of gender, should not be compared.

 The Norm Need To Be Stated

There should be an appropriate problem in order to differentiate women form men. There should be a norm – a law, unless there is such, no one has a right to differentiate between the genders. Take for instance, ‘pregnancy’ as a matter of difference in U.S. One may lose her job if she gets pregnant during the period she has been working: it is justifiable because they have a law for it because they have a norm. Here, a clear difference can be seen. The difference is pregnancy in women and men. If we state ‘pregnancy’ we see a problem but if we say ‘women’ its not a problem.

 A False Assumption – The Observer Can See Without Perspective

True reality exists. ‘ Come on, there is not out there all evil men!’ Consider a judge who has not been married, who has not raised children, holds no household: His decisions on the subjects of marriage-divorce-children-household-alimony would never be like the way it really should be. One has to go through such circumstances on which the verdict is being given. Lecturer Yuvaraj Sangraula delivered a same example – there is a majority of Brahmins in the Supreme Court Judges: If a verdict were to be established on a case of a Brahmin v Dalit, the decision would surely be inclined towards the Brahmin sentiment. Same condition applies if a Muslim against a Hindu filed a case. The need here is a matter of perception by the bench: Go beyond the observation –what you have been seeing may totally be a false assumption. Do not focus on the problem; see beyond it- a solution lies there!

The Status Quo Is Natural, Not Coerced And Good

The theory is a product of CLS and hence reflects US examples only but it reveals the inner truth. Take for instance an American example again: Government changes things – Courts decide and there is always a huge uproar. A change can be a disruption for every person good.

E.g. Disabled people use wheelchairs to travel. They have got sidewalks, pavements for their safety. A matter of concern for them was noticed that it was difficult for them to go through steps in the sidewalks. The matter was taken to the court, soon it was decided that the steps in the sidewalks needed to be sloped for the benefit of disabled. A law was also passed. It was a change in Status Quo because it was natural, not coerced and good. The law was not made by a disabled nor was it passed by a disabled, even the jury had not disabled members. Others, as they always do, did raise a question of mobility!

 Conclusion

CLS has always criticised that law benefits the Whites, as Blacks did not make it: as for Nepal, it is always said that law was made by Brahmins and hence does not reflect the sentiments of others. Accordingly, in Nepal, we are confronted with racial discrimination. Racial Discrimination itself is not a matter of difference to talk about. Racial Individuality is invisible considering that Sexual Individuality is visible. ‘Invisible Ideology’ applies for Critical Race Theory i.e. for Dalit – so called untouchables and deprived in the Nepalese Society. The matter to be considered is that Racism is not a matter of Biological differences. You cannot separate them from your sense of sight. Its what you have in your mind and its what they have in their minds too. There is no such actual difference between us in order to raise a question of difference among us. It is just a matter of perception through our minds. When we cannot see a difference feel a difference, we do not have a right to talk about the difference either. Isn’t it time, we started ignoring such differences that really do not exist among us?

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