Gender Neutrality of Law is a Myth
The status of women as empowered citizens around the world is yet to be ascertained. Guided by the Charter of the United Nations and the Universal Declaration of Human Rights, it seems as if the trend towards a just social order reflects a better tomorrow, and yet, thousands of women suffer from the brutal crimes and atrocities committed by their male counterparts. Deeply woven into the social fabric of society, women face the onslaught of a patriarchal legal system - be it by the denial of fundamental rights in Afghanistan or the exclusion from property interests in India. Women still struggle as the marginalised gender in many parts of the world. This leaves considerable room for scrutiny of whether gender neutrality of the law is a reality, or indeed, a myth.
The aim of this paper is to map the main theoretical arguments of feminist jurisprudence, which help to unmask the hidden language of gendered laws. It draws upon the various feminist theories that have helped critique the basic assumptions of the Rule of Law, thus laying the foundation to understand whether laws are undeniably neutral. With this backdrop, the essay proceeds to critically examine the role of law in modern society and its ability to remain impartial. However, recognising the permeable nature of the legal structures, it concludes with seeking to portray the everyday influence of social rituals and customs that help determine the true character of the law. Thus, the law inherently possesses the capacity to construct or deconstruct, include or exclude, remain neutral or gendered in nature.
Historically tracing the patriarchal tradition from the writings of Plato and Aristotle, it has been gathered that traditionally, culturally and socially, women have belonged to the second or the inferior sex. As this forms the point of departure of feminist jurisprudence, feminist scholars have brought to the forefront a wide array of issues on law and gender. The feminist movement has emerged as a defining force that worked towards highlighting and correcting inequalities and prejudices supported by seemingly neutral laws, through policy development. It marked the birth of a new political group who focussed on exposing the reality of gender neutral laws, campaigned for equality in the private and public sphere, stressed on women’s representation in political arenas and demanded a growth of feminist literature. Thus feminism heralded a significant critique of the legal landscape that governed the construction of socio-political equality in society, predominantly stressing on ‘law’s role in perpetuating patriarchal hegemony’ .
The development of law as an instrument of justice has long been the directive principle of ‘modern’ society. It seeks to protect and promote security, liberty and property of each individual , along with the promise to right the wrongs committed, and it assures a remedy for injustice. This representation of the law...