Anastasia Ogele Idodo

LITERATURE REVIEW Over the years, feminist jurisprudence has enjoyed a wide range of discourse, publications and research work by both national and international writers. An attempt would be made to examine some of the works on feminist jurisprudence. Clare Dalton 1has written of feminism that it is a “range of committed inquiry and activity dedicated first, to describing women’s subordination-exploring its nature and extent; dedicated second, to asking both how-through what mechanisms, and why-for what complex and interwoven reasons women continue to occupy that position; and dedicated third to change” Dalton has been able to include the general theme that runs across the various schools of feminist jurisprudence by not emphasizing on a particular method, but making enquiries as to the actual fact of women in the society; by exploring the nature and extent of women’s subordination, identifying the mechanisms through which women continue to occupy that position, and how to effect change which may be achieved through various means. To Robin West2, the failure of modern legal theory lies in its understanding of what is to be a human being. Such theory is male because it assumes that individuals are essentially separate from one another. She argues, to the contrary, that women are connected to other human beings, especially through the biologically based activities of pregnancy, breast-feeding and heterosexual intercourse. West argues for a feminist jurisprudence that reconstructs legal concepts to take account of the realities of women’s experiences. Not only is the “separation thesis” an obstacle to the development of feminist legal theory, but it constitutes a barrier to the demolition of patriarchy. 1 2 (1987) 3 Berkeley Women’s L.J.1. From (1988) 55 university of Chicago Law Review 1. West’s “separation thesis” cannot be said to be absolute. Despite the fact that men are not connected to other human beings through biologically based activities of pregnancy, breastfeeding and heterosexual intercourse, they are connected to other human beings emotionally and socially. Again not all women experience are connected to other human beings through biologically based activities of breast-feeding and heterosexual intercourse, either by nature or choice, lesbians don’t engage in heterosexual intercourse3, barren women don’t get pregnant or breastfeed, some women choose to have children through surrogacy or do not give birth or breastfeed in order to keep their shape. West’s position on the need to reconstruct legal concept to take account of women’s realities is accurate. Richard Posner4 claims women do not lack “a sense of themselves as individuals; nor is that sense diminished by pregnancy and breast-feeding”. And of heterosexual intercourse he opines: “it would make as much sense to describe the female as ingesting as it does to describe the male as penetrating”. Posner’s claim that women do not lose their sense of individuality through pregnancy and breastfeeding is right; women and men are different yet equal. In spite of their differences, their unique experiences doesn’t make one less than the other. Wendy Williams5, a liberal feminist in an article argued that feminist have only two choices: either equality on the basis of similarities between the sexes or special treatment on the basis of sexual 3 Sexual union between a male and a female involving insertion of the penis into the vagina. See American heritage, dictionary of the English language, fifth edition. Houghton Mifflin Harcourt publishing co (2016). 4 (1989) University of Chicago Legal Forum 191. 5 - N.Y.U.L.Rev. L and Soc. Change 325; (1982) 7 Women’s Rights L. Rptr. 175. differences. She favored the former, since difference always means women’s difference, and this provides the basis for treating women worse as well as better than men. William’s argument leaves no room for creating a balance by taking account of the equality of women with men while reflecting their differences. Carol Gilligan6, a developmental psychologist, in her popular book, in a different voice observed that little girls and little boys appear to grapple with moral problems differently. Boys tend to make moral decisions in a legalistic way: they presume that the autonomy of individuals is the paramount value, and then employ a rule-like mechanism to decide among the “rights” of those individuals. Gilligan refers to this as the “ethics of rights” or the “ethics of justice”. Girls, on the other hand, seem to proceed by the “ethics of care”. They have as their goal the preservation of the relationships involved in a given situation. Their reasoning looks equity: they expand the available universe of facts, rules, and relationships in order to find a unique solution to each unique problem. Gilligan’s observation cannot be said to be absolute as there are various factors that define how human beings react when faced with moral problems, they include religion, culture, environment, genetic makeup, values, upbringing, etc. Ann C. Scales7, is of the opinion that “ the term ‘feminist jurisprudence’ disturbs people, that is not surprising, given patriarchy’s convenient habit of labeling as unreliable any approach that admits to be interested, and particularly given the historic a priori invalidation of women’s experience. That longstanding invalidation also causes women, including feminist women, to be 6 7 Gilligan, In A Different Voice (1982). The emergence of feminist jurisprudence: An Essay (1986)s reluctant to make any claims beyond the formal reach of liberalism. Further, we are taught to ascribe the legal system’s successes to the principle of detachment” To a great extent, Scales position that the term ‘feminist jurisprudence’ disturbs people is accurate. People tend to visualize unhappy women who hate men and want to be superior to them, some are ignorant of the fact of the various schools of feminism and the variety in their approach to ending discrimination against women. Abdulkadir 8 defines feminism as an ideology which seeks to assert the principle that women should have political, economic and social rights equal to those of men. Abdulkadir failed to take cognizance of the fact that not all feminists agitate for equality. Cultural feminist for instance base their opinion on women’s ‘differences’ and that those differences should be celebrated and reflected in the law. Elizabeth Ogini9 is of the opinion that feminism has found wide acceptance in Africa, especially among the down-trodden and long abused African women and their sympathizers. Ogini fails to take note of the fact that not all African women accept feminism, it is seen as a treat to their cultural and traditional values. Also, some see it as a western concept which is foreign and may corrupt existing traditional family values in the society. 8 Abdulkadir, H.N. (2003) “Feminism and the production of the subservience” in women journal of research and development in Africa, university of Abuja. Vol II, NO. I, pp. 26-42. 9 Ogini, Elizabeth. “Feminism and Womanism: A Historical Perspective” Feminism and Black woman’s Creative Writing and Critical Transformation. Trenton, New Jersey: Africa World Press, 1994. Lisa Tuttle10 defined feminism as “the advocacy of women’s rights based on a belief in the equality of the sexes, and in its broadest use, the word refers to everyone who is aware of and seeking to end women’s subjugation in any way and for any reason”. Tuttle failed to take note of the fact that not all advocacies for women rights are based on a belief in the equality of sexes. But is accurate to identify the fact that there are various ways of ending women’s subjugation, as there is no particular accepted means. Helen Chukwuma11 opines that feminism means “…a rejection of inferiority and a striving for recognition. It seeks to give the women (sic) a sense of self as worthy, effectual and contributing human being. Feminism is a reaction to such stereotypes of women which deny them a positive identity…” Chukwuma rightly asserts that feminism is about striving for recognition and self-worth as a human being and also a reaction to stereotypes which deny them of a positive identity. Catherine Mackinnon12 observes, “Men’s physiology defines most sports, their needs define auto and health insurance coverage, their socially designed biographies define workplace expectations and successful career patterns, their perspectives and concerns define quality in scholarship, their experiences and obsessions define merit, their objectification of life defines art, their military service defines citizenship, their presence define family, their inability to get along with each other 10 Tuttle, Lisa. Encyclopedia of Feminism. New York: Facts on file Publication, 1986. Chukwuma, Helen. “The Identity of Self”. Introduction”. Feminism in African Literature: Essays on Criticism. Enugu: New Generation Books, 1994” 12 Catharine MacKinnon, Feminism Unmodified: Discourse on Life and law (Cambridge: Harvard University Press, 1987) 11 – their wars and rulerships – defines history, their images define God, and their genitals define sex” Mackinnon logically asserts the fact that the society is structured towards men’s perspective while isolating and barely including women’s perspective. Susan Moller Okin13 opines that feminists point out to the tradition of assigning women primary responsibility for child care and of structuring most jobs with male workers in mind, so that it is assumed the worker does not have child care responsibilities. This handicaps women in the job market even if no employer discriminates against them: well-paying jobs are structured in such a way that most women, who do have child care responsibilities, really are less qualified for those jobs. While Okin is justified on the grounds of asserting the fact that the workplace is structured to favor men and not inclusive of women’s peculiar circumstances, she failed to note that not all feminist agitate for special laws favoring women, rather they want equality with men. Amadi 14 asserts that “women have been stereotyped, marginalized and trivialized in such a way that whatever men know and do in the society is considered superior to that which women do and know. He further opines that “women suffer discriminatory practices more than men; educating girls is widely perceived as being of less value than educating boys; girls are forced to terminate their education if they became pregnant; they are not given the chance to continue with their education after babies are delivered. As a result, there are proportionally more dropouts among girls than 13 14 Susan Moller Okin, Justice, Gender, and the family (New York: Basic Books, 1989). Amadi, B (1982). Ethics in Nigerian Culture; Ibadan; Nigeria, H.E.B. Nigeria Ltd. among boys. The hope that this injustice to girls will discourage immorality is in vain because boys who are usually the main culprits are not punished in the same way and so will continue to seduce girls. Amadi has rightly stated the unequal treatment women are subjected to on the basis of their sex, while men get away with doing the same things. In Nigeria, beyond terminating their education, some women are disowned by their families, and also referred to as ‘second hand’ 15because they had children out of wedlock and have a lesser chance of being married than other women who don’t have children outside wedlock. Their male counterparts on the other hand may get flown out of the country to further their education and deny the child while accusing the mother of being ‘loose’, the woman may even be accused of trying to ‘trap’ the man with the pregnancy. Igbuzor16 position is that “In general, women’s traditional/cultural and religious challenges include practices such as widowhood practices, wife inheritance, female genital mutilation, male child preferences, malnutrition and lack of access to food and other stereotype beliefs in male and female child upbringing and education”. Igbuzor has rightly highlighted some cultural and religious challenges that women face in the society. Ganiat Olatokun 17opines that “Women, being the bearer of children should have a right to choose to decide freely and responsibly on the number and spacing of their children, and Men’s general knowledge and attitude concerning ideal spacing between child births will greatly influence 15 Acquired after being used by another: not new. Merriam-Webster online dictionary 16 Igbuzor, O. (2009). Challenges of Development in Nigeria, Ikeja, Lagos; Robitos Alliance Publishers. 17 Ganiat Mobolaji Olatokun. “African Traditional Values and the right to choose for women: A conflict resolved (CEHSS – TRACK). women’s preferences and opinions. By so doing, a joint-decision making strategy is hereby proposed where men and women will be able to have a say in relation to the number and spacing of children.” Olatokun rightly posited by suggesting a ‘joint-making’ strategy that balances the interest of both women and men in deciding the spacing between child births. This is a justifiable position as opposed to the woman’s right being above the husband’s right or vice versa, both the man and woman in normal circumstances of the word feminism has been traced to be white American woman