The gender debate impacting the community and the legal fraternity makes both a fascinating story and an exciting intellectual exercise. In this short article, I explore the main areas of interest namely: the impact on process and outcome of the gender comparison and a reflection on the relation between women to the law both practically and theoretically. Some food for thought is whether:
- the application of the law is the same on women and men?
- the liberal concept of the legal subject does reflect women’s experiences or not?
Inequality is not a concept belonging exclusively to gender, but may branch off into broader areas with implications on issues such as race and many facets of human rights. I do not enter the race debate in this blog but it too makes for an interesting story especially in South Africa. The question is how do we deal with them?
The struggle to find ways to make women and men equal
The point to consider is whether in its application, does the law take into account women’s experiences both practically and theoratically. Is the idea that this is a man’s world so entrenched that the law is not enough to alter a man’s psyche about a woman’s position in humanity. I am inclined to believe that there is an internalised characterisation of women that has a potential of perpetuating the exploitation and discounting of women in almost every society in the world regardless of certain social and political advances within that country.
Ngaire Naffine expressed the patriarchal nature of the law as follows:
The proposition that law is imbued with the culture of men moves beyond the claim that law is made by men and therefore tends to entrench their position of dominance. The indictment is more far-reaching. Law, it is said, is conceived through the male eye; it represents the male perspective. It starts from the male experience and fails to recognize the female view
It is true that there is a deep need to begin to define the world in ways that reflect the realities of women. I find it difficult, conceptually, to understand why it is that we as women have to go through the labourious exercise of having to convince the male species and the lawmakers who, as history demonstrates, only looked at things from the male perspective. Even after convincing them to commit to drastic changes to the law or their rules to include women, it seems we still have to convince them that we actually belong there. I do accept that although the laws delineating the rights of women in South Africa are good and have done a lot to alleviate a lot of the hardships that women faced in the past. It must, however, be remembered by our male counterparts that those laws were not a birth of our rights but merely a belated acknowledgement of rights women already had or ought to have had. The demand for equality by women should not be miscontrued,as it seems to be, that we were not already equal.
Are women different from men? Yes but equal to men in every essense of the word. Women need to be defined in relation to who they are and not defined and differentiated with reference to men. Women should be regarded as autonomous beings just as men are, because, they are. This is especially so when we begin to see that on a social and political level women are beginning to fulfil the roles that were traditionally equated with maleness. Indeed the factors which need to be taken into account in understanding women’s experiences and reality differ across different theoretical and social perspectives.
Mankind (Not Womenkind)
Let us briefly examine the contents of human rights in its country of origin, France. Article 1 of the French Declaration states that man are born equal in rights and in dignity. This is a correct statement theoretically but a great fallacy practically. People are not born equal but totally unequal. The Marquis de condorcet and a few pre-revolutionary philosophers argued that:
Natural rights belong to the abstract man, because they are derived from the nature of man, defined as ‘a sensitive being… capable of reasoning and of having moral idea.
It is said that after sex, colour and ethnicity were added, men represented humanity because their reason, morality and integrity made them an exact image of the “man” of the declarations. Women’s “fleeting feelings and natural tendencies precluded their ability to live up to the individual prototype”.  The female model was interpreted as having handicaps and signs of inferiority:
Maleness was equated with individuality and femaleness with otherness in fixed, hierarchical, and immobile opposition (masculinity was not seen as femininity’s other). The political individual was then taken to be both universal and male; the female was not an individual, both because she was non-identical with the human prototype and because she was the other who confirmed the (male) individual’s individuality.
Women were not given the right to vote in France up until 1944. Similarly, women’s rights to education and work were not recognized until well into the twentieth century. Mary Wollstonecraft responded to the French Revolution and appealed that the rights of man should be extended to women:
If the abstract rights of man will bear discussion and explanation, those of woman, by a parity of reasoning, will not shrink from the same test… but if women are to be excluded, without having a voice, from a participation of the natural rights of mankind, prove first, to ward off the charge of injustice and inconsistency, that they want reason, else this flaw in your new constitution will ever show that man must, in some shape, act like a tyrant, and a tyranny, in whatever part of society it rears its brazen front, will undermine morality.
Developments since then show that the rights of the “man” of the declarations led to the belated introduction of women’s rights which in turn has led to fears of male emasculation. It does seem as though every right creates fears and anti-rights. One cannot escape the thought that somehow the policy maker has over time given limited freedoms to women – just enough to keep them in check whilst still witholding the rest. In our admission of similarity or equality we have to still respond to the demands of our difference.
The bestowal of rights of men on women undoubtedly automatically enhance their freedom, equality and dignity. However, as the feminism of difference has cogently argued, the universality of rights necessarily neglects the specific needs and experiences of women. The question therefore still remains, how, when and in relation to what are “women (not) like men”? Rights in law act to formalise identities by recognition and enforcement. The law uses the technical category of the legal subject and its repertory of remedies, procedures and rights to mediate between the indeterminate concepts of humanity, rights and the people who claim their protection.
Joanne Fedler describes her experience as a woman lawyer in South Africa thus:
Becoming a lawyer… is the process of becoming aware of power: the power of language. And this is a heady space to be in, to be sure. But for me, it has been tempered by the knowledge that this profession of mine (can I call it my own?) admits me belatedly. I feel like a recruited member to a men-only club that has recently revised its exclusionary policy. I am allowed in. Told the rules. Tolerated. Patronized. I must behave, think and speak like the boys or else I will be snickered at like a person who uses the wrong silver knife to butter her bread… in what voice does the woman lawyer speak when she knows that the power of her profession is a black robe under which she still menstruates?
The problem is therefore not inequality but rather ignorance in the realisation of the value and the complementary differences between men and women. It seems these words ring true ‘people perish because of lack of knowledge’, however, ignorance is not an excuse.
Practically, these words ring true for many of us, my personal experience and observation as a women in a male-dominated profession is this:
- There are those males who much prefer to place on me the stereotypical gender roles and expectation that I should be respectful and should not disagree at all;
- My physical capabilities sometimes fail me, for example, when I am involved in a big case but I struggle to carry the big files up the stairs at court;
- My health related issues like having to show up at court and perform to my best no matter that I am having terrible menstrual pains sometimes sabotage even my best efforts;
- Sometimes having negative identity issues like a male of the same seniority being preferred and listened to better than me; and
- The most difficult of all in my view which is at times not being able to balance my work and family life. Sometimes I feel like in order to be a better lawyer, I have to sacrifice being a good mother and wife.
I do not want to adopt male characteristics in order to gain advantage or resort to using other feminine advantages in order to stay in the game. So, can I suggest then that the best way for us to make progress in the relationship between men and women in the legal fratenity is for men to renew their minds and to accept that women are equal and to accept that different does not always mean inferior. If women were to adopt the attitude that men are inferior because they are different from women, both views fail to appreciate their value and celebrate the complementary differences between men and women.
 Naffine, N. Law and the Sexes. London: Allen and Unwin. (1990) p 7-8.
 Roederer C, Moellendorf D. Jurisprudence (2004) 294
 Quated in Joan Scott, Only paradoxes to Offer: French Feminists and the Rights of Man (Cambridge Mass, Harvard University Press, 1996) p6
 Dauzinas C. The end of human rights: critical legal thought. (2002) p97
 Quoted on Joan Scott, Only paradoxes to Offer: French Feminist and the Rights of Man (Cambridge Mass, Harvard University Press, 1996) p8
 Douzinas C. The end of human rights: critical legal thought.(2002) p98
 Vindication of the Rights of Women (1792)
 Wollstonecraft on the Rights of Women (1792)
 Luce Irigaray, Thinking the Difference. See Douzinas C. The end of human rights: critical legal thought. (2002)
 Douzinas, 260
 Fedler, J. (1994) Towards Womanist Lawyering. Agenda 21:71-5. See Johnson D. et al Jurisprudence: A South
African Perspective. Durban: Lexisnexis Butterworths. (2001) p228.
 Hosea 4:1, The Bible.