I contain multitudes1: Women’s engagement with Law
The need to assess whether we should function outside the structure of state or not has come to the forefront of political psyche of our times, we see through many uprisings of popular movement and protests not just in India, but countries like Thailand, USA and UK that there is a new kid on the block: Demonstration of dissatisfaction with the State through means other than the legal democratic inlets and outlets. We all saw the women take the streets when the heavyweight Ruth Bader Ginsberg died, to oppose Barrett’s nomination in her place as a Supreme Court Justice showcasing their emotions and political dissatisfaction with the functioning of the State as it is, we saw Polish women take to the streets to protest the oppressive abortion laws that threaten to take away their own agency from their own physical identities: The bodies of women, protests erupted after the Kathua rape case to the most recent Hathras rape case on the streets of India. So the question that comes to mind is whether we should engage with the issues that affect us, through legitimate means of “political parties, lobbyists and other government players such as legislators and state governors” or through extra-legal means such as “protests, demonstrations and public performances”. Coming especially to issues of female identity and State/Legal engagement, feminists for many years have been debating whether the women should engage with the State at all or not. The presumption being that state is anti-women, its laws and policies on deep perusal show that they are if not oppressing women directly, are guilty of creating situations that put women at a disadvantage. It is important to denote that all feminist theories function in a similar way, they first observe the world and then they aspire for it to have been different, the different “factions” of feminists that we will outline in this article although differ in how they should deal with law, agree on the basic context that:
1. All laws since time immemorial have been written by men and serve the very clear and distinct goals of men
2. That men and women should both be treated with equality in procedure and substance.
It is only the “how” of the matter (their objective) on which these two approaches within feminist legal narrative differ. From 1990s onwards there has been a shift in the theory's narrative. Some of the prominent women invested in the examination of how feminism works in the world have presupposed that law as a space may not be the best for furthering of the political motives behind feminism. The hypothesis is as such: law is not a neutral instrument for political change rather extends and legitimizes state power in ways that foreclose the dynamism of political activism. An irreconcilable divide is between law and politics.
The oppressive hypothesis can be better understood through the writings of the following feminists:2 Catherine A. Mackinnon, Martha A. Fineman, Judith Butler and Wendy Brown.
MacKinnon encapsulated early Liberal Feminist logic and although believed that law was oppressive in that it did not lend legitimacy to women and their true equality because of the equality-difference paradigm, we must engage with it to bring lasting change. “equality difference paradigm” means that when the law treated woman and men as equals, the law could not recognize their particular embodied differences; if different, the law could not recognize them as equals, both approaches failed because they measured women according to a patriarchal standard which was simply the lifestyle of a man, thus it was a paradoxical puzzle. She believed that the tug and pull between men and women on the legal field would eventually allow for a standard to develop that was not a comparison to men but independent to women. But this engagement can only happen by affecting change through our leaders and political parties and by maintaining the legality of women’s demands in the stricter “legal” field and not by inviting illegality through means of extra-legal engagement such as protests. This point of view was of a liberal conservative white centric time-frame. The legal issues that this approach covered were also reflective of the conservative liberal set up such as the sexual harassment in workplace, where the access to workplaces was a white woman’s prerogative, and the issues were singular in their subject. In reaction to this, Fineman believed that feminism cannot transform the law. Legal engagement was a particularly disastrous method for feminists in their efforts to challenge the patriarchal oppression of women. The rejection was based on the fact that law itself was the oppressor of women. Butler and Brown again talk about the language of law, and how that in and of itself is repressive of women’s identities, law as language is prohibitive of women. Butler says that women as subjects are not ‘a priori’3but are produced through the language of law. And Brown was of the view that law only recognizes women when they are being victimized. Thus, the recognition through law itself is harmful to women. They talk about how production of female identity at its core is oppressive and women should instead invest in extra-legal means of collectivism, i.e. activism.
What now?: The way movements and theories progress is a fact of the times, during the 1980s and 1990s the feminists that were working with the government and the states shared a common value of “conservativism”, they wanted equality, but this equality was actually “what men had”, it didn’t develop separate identities of women’s wants and thus rights. Over the years this narrative has changed and shattered in multiple directions. To finalize this narrative of State and the female identity, the point I would like to leave you at is what Kimberle Crenshaw coined: Intersectionality4. This method of engagement within the feminist narrative and also with State reveals that the liberal 1990s analysis of the past are a tunnel vision in the sense that they do not include the elements of race, gender, economic class or for India caste identities that are hidden in the treatment of women and other marginal identities by the Law and the State. The aim of intersectionality here is to demonstrate how the fact that these multiplicities of existence of people in the society are not reflected in the “white-liberal” feminist activisms or under just the laws that the States “says”
Meaning that only man exists in nature, only when law tries to demonstrate what rules would control the society and it says “woman” then woman as a distinct species come into existence should affect women, making the existence of Black, Muslim or Dalit women null for both the State and other Feminists who may be acting beyond the boundaries of State. In the 21st century we need to understand that the problems that are associated with the identity of being a woman are have a multitudes both in terms of the women it affects and the laws that come under the purview of a woman’s concern in the society. The practice of engaging with power structures of State or Social structures would have to be acutely diverse and at the same time feminist at their core. This multiplicity of existence of directions in which women can engage and sexist has to be reconciled with the popular feminist narrative.
India’s Example: The most shining example of this theory into practice was seen at Shaheen Bagh in the most recent memory. The event showcased the correlation between caste, class, religion and gender in the background of law and how laws may affect women particularly. The protest was exemplary as it saw women participation in not just issues of female rights, but about a broader problem that is threatening the very tenets of democracy and citizenship in India. Women from all strata showed up for a cause that in popular media would be deemed outside the purview of a women’s domain i.e. her HOUSE, here she participated in the making and breaking of the democratic India i.e. in PUBLIC. The protest was an example of intersectionality of the feminist narrative, where the protest or the event defied categorization in terms of political agendas, yet at its core it held the feminine identity as a front for unification6. It was the perfect living example of how laws affect women’s lives and how they can affect the existence of laws in return. Judging the Shaheen Bagh protest through the liberal (conservative) set ups as we saw in the beginning of this article would create space for criticism of the engagement with law through extra legal means, which is exactly what we saw happening, when the upper strata of the society or the liberal upper caste practitioners of politics rejected the legitimacy of the protests7. It is important to remember that the issues that we face as a society are all pervasive and thus everything affects men and womxn equally, it may affect them in diffferent ways and degrees and each woman may produce a different account of her experience, but that does not discredit her personal understanding of the matter, the differences help us in getting the bigger picture. Similarly whether women should engage with law and go to vote or turn up at public hearings of matters or reject law as a means to achieve change and take to the streets is not a yes or no question, women for both their own personal rights and much broader tenets of our society must find micro narratives of engagement and unification. So, yes go vote, become MPs and MLAs, hold bureaucratic positions, but also at the same time, see you on the streets.
- Pragya Singh