Rethinking Liberal Feminism in Legal Discourse. (Marxist Analysis)

Written by, Mohammed Farhan.

Originally written as a portion of my Master’s Dissertation regarding contemporary Marxist thought at Keele University

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Introduction

Women’s struggle for equal rights is a centuries old battle from the Seneca falls convention in 1848 calling for the political and civil rights of women, to the suffragette’s movement winning the right to vote. Feminist movements have evolved and shaped concepts of equality, justice and freedom, and continue to do so by incorporating philosophical traditions into multidisciplinary theories that continue to change legal ideas of equality, justice and freedom.

Thesis

Feminist critiques of human rights advance traditional and hegemonic (Krishnadas 2019) understandings of equality, protection, and justice in the legal realm. Critics from various philosophical traditions such as Marxism (Engels 2010) challenge the concept of legal reform bringing in a materialist analysis of class and the role of patriarchy in the capitalist mode of production, while post-colonialist feminist scholars such as (Kumari 2016) argue against homogeneity of women, developing a theoretical framework of feminism that includes the complexities of socio-cultural structures such as race, religion and culture.

Liberal feminism

i. Summary

Liberal feminism as Krishnadas (2019) finds is “based on the hope that extending rights to women would provide an equal position with men”. Liberal feminism focuses much of its attention on political and legal reform (Maynard 2006), suggesting female equality is tied down by existing legal restraints (Tong 1986), therefore, it is necessary to reform the law. Essentially liberal feminists argue that work must be done within the dominant structure of society in order to integrate the equal rights of women.

ii. Theory

Maynard (2006) refers to liberal feminism as the oldest branch of feminism, with its roots tied closely to the first wave of feminism. In its nature the first wave of feminism sought out political equality amongst men and women defined by liberal theorists such as Wollstonecraft, Martineau and the suffragette’s movement. It rallied behind the idea that a liberal democratic state should be a central ally for the feminist movement. During the 20th century (Tong 1989) liberal feminists identified various civic areas where patriarchal institutions were most prominent and sought to change them with legal reform through existing legal structures such as lobbying. There have been many historical reforms championed by liberal feminists as a result of criticising certain civic areas as inherently patriarchal.

iii. Practise

The Convention of the Elimination of all Forms of Discrimination Against Women (CEDAW) is an important case study in understanding the effectiveness of liberal feminism in furthering discourse upon the legal ideas of women’s equality, justice and protection. The creation of CEDAW was in direct correlation to liberal feminist critiques of the UN Human rights declaration (Louis 2009). Krishnadas (2019) found that many liberal feminists saw the UN declaration of human rights as being inherently subservient to patriarchal standards especially within its legal wording, most evident in words such as “brotherhood” when speaking on the universality of the UN declaration of human rights. In good practise of liberal feminism, this faction of feminism lobbied the reformation of the UN declaration of human rights, spurring the creation of CEDAW. Targeting the inherent distinctions in the UN human rights declaration, CEDAW outlined 6 chapters containing 30 articles. The main points of reform centred on ideas of sex stereotypes, sex trafficking, rights in the public sphere such as political life and representation, economic and social rights focusing on education and employment and equality in marriage (Louis 2009).

Krishnadas (2019) finds that liberal feminists were able to frame the fight for equality as inherent in using positive action within the confides of the state utilising enforcement mechanisms such as treaties, extra conventional mechanisms, state reporting, special rapporteurs, working groups and 1503 procedures. CEDAW is but one example of these various utilities in action.

Zizek (2005), argues because liberal feminism concedes a large majority of its political power to the limitations of the state, it has found itself backed by the ideological capitalist state apparatus, therefore, has solidified its position as the hegemonic mode of feminist discourse. Zizek (2005) uses the term ideological capitalist state apparatus in reference to the Althusserian (2014) reformulation of economic base and superstructure theory. Essentially the ruling class of a capitalist state in a constant push to preserve the current organisation of their political economy use their influence to encourage ideas that conform to the current organisation of the political economy, conversely ideas that challenge the political economy are ignored or repressed.

Marxist Feminism

i. Summary

This leads to the first major criticism of the liberal feminist approach to legal ideas of equality, justice and protection. One of the major contemporary arguments levied against liberal feminism is from the materialist approach to feminism. Within the materialist philosophical tradition is the argument from Marxism. Marxists such as Engels (2010), Zetkin (2015) and more contemporarily Davis (2019) use base and superstructure theory of capitalist society to argue against liberal reformism.

ii. Theory

The base and superstructure theory was originally formulated by Marx (Roemer 1990). Within Marx’s understanding of society, he believed the inception of organised labour operated in two cohesive sections, an economic base and a social superstructure.

The economic base is the organisation of societies means of production i.e the ruling class presiding over the control of societies productive forces and using this position of power to exploit the labour of the working class. Marxists argue the economic base is the sole material condition that determines societies social superstructure, from art, culture, politics, and specifically the role of gender and class. The economic base utilises the social superstructure to legitimise, preserve and reproduce the current mode of production.

Marxists (Roemer 1990) argue the institution of the patriarchy is inherent to the current economic material conditions. One example of this as Ferguson (2013) finds is gender inequality is reproduced culturally and legitimised by benefitting men at the expense of women by weighing domestic labour as less valuable. In this sense amongst the already oppressive institution of the class system, another structure exists that further marginalises working class women. Marxist feminist scholar Gilman (2006) develops this theory by drawing examples of this inherent marginalisation of working-class women in areas such as reproductive labour and socialisation of housework both areas of work that go completely uncompensated that require labour leading to the alienation of their labour.

Therefore, in order to pursue social equality for women it is necessary to actively change the formation of the economic base. This is the point of contention between liberal feminists and Marxist feminists. Marxist feminists argue attempting to use the established political institutions to seek equality is futile as the institutions themselves were developed to preserve a mode of production that has patriarchy as an essential feature. Therefore, legal reforms will never be enough in achieving equality, justice and protection for women.

Instead Marxist practitioners, such as Ghandy (2012) argue, instead of legal reform within the confides set by the state, feminists must actively reform, agitate or overthrow the current mode of production directly seeking to change the economic base itself. In practise this would involve revolutionary action from strikes, protests and even political revolutions.

iii. Practise

An example of a Marxist feminist theory in practise can be seen in the actions of the “Big Flame” (Widgery 1976) group in the UK during the 1970s. The Big Flame was a group created in the 1970s by a coalition of Marxists groups in Liverpool. They described themselves as revolutionary socialist feminists with a working-class orientation. The group worked closely with trade unions that involved women labourers, and organised strike in Ford plants and the Liverpool docks. This highlights the disparity between liberal and feminist praxis.

Where Marxist feminists employ direct action to agitate the economic base, liberal feminists work within the established social structures to bring political equality amongst men and women. Reframing the debate from ‘how can we use the state to promote women’s rights” to “How can we change the state that represses women”.

iv. Criticism

Marxist feminism, however, has faced large amounts of criticism from other approaches to feminist, specifically materialist feminism. Materialists and Marxists use a similar approach to understanding society — through the lens of societies socio-economic structures and the social constructs it materialises such as gender. However, materialists posit class is but a single factor amongst a plethora of social arrangements that materialise the social construction of gender. Materialists further that, it is the social construct of gender that facilitates inequality for women, Jackson (2001) tells us the social construct of gender forces gender roles onto women, roles in which are the foundations of women’s inequality. Referring to Marxist feminism as class reductionist, materialists would argue when discussing legal ideas of women’s equality class must be but a single equation amongst a web of social arrangements such as race, religion, sexuality and so on (Jackson 2001).

Marxists, in an attempt to combat claims of class reductionism, such as that of Collins (2000) integrated the idea of intersectionality to reformulate Marxism. Collins (2000) agrees that individuals can experience various forms of overlapping oppression at the same time, and it is important to acknowledge the unique class struggles relating to them, examples of which are black working class women and white working class women though — both are a victim of class antagonisms perpetrated by a capitalist state, there is distinct forms of oppression that are experienced by black women. With this understanding of distinct overlapping oppressions Collins (2000) argues the fundamental cause of these overlapping oppressions is still the economic base, capitalism thrives off of alienation of labour and the division of the working class and all socially constructed inequalities are to preserve the current mode of production, therefore in deconstructing gender as a social construct it is essential to dismantle capitalism and reform the economic base.

Post-Colonial feminism

i. Summary

Critique of the liberal feminist approach isn’t exclusive to the Marxist understanding of feminism, post-colonial scholars such as Kumari (2016) argue liberal feminism and even Marxist feminism is just an extension of ethnocentric hegemony, or more eloquently characterised as “within the colonial tradition of colonizing” (Krishnadas 2019). Liberal and Marxist theories of feminism categorise all women within a homogenous political entity, post-colonialist theorists reject this notion, outlining the socio-cultural complexities of women’s struggle for equality and the need for specific legal ideas tuned sensitively to these socio-cultural complexities in order to see beneficial practical change of women of the third world.

ii. Theory

Post-colonial feminism was built upon criticisms of western feminism. Post-colonial scholars such as Mohanty (Nicholson 1995) sought to bring discourse surrounding the complexity of race, culture and religion into liberal feminism. Post-colonial theorists (Nicholson 1995) argue without a regard to these complexities, third-world women would be forced to neglect certain oppressive institutions unique to their conditions as their oppression would be calculated through the lens of western women (Mohanty 1984).

This leads to a significant point in post-colonial feminist discourse, which is the idea that women are not a universal group with shared collective oppressive institutions — instead feminism is a series of distinct emancipatory battles often dictated by socio-cultural factors.

One key socio-cultural factor of post-colonial feminism is race. In an attempt to dismantle the veil that all women are a homogeneous population post-colonial feminist drew their attention to ideas of western hegemony. Theorists such as Lorde (2007) argue due to the west’s foundations in colonialism and their development of racist institutions liberal feminism as developed from the western tradition of liberalism has built-in racial ignorance, therefore when they speak of the homogeneity of feminist praxis they are in fact only speaking of white women. Lorde (2007) more eloquently explains this as “white women ignore their built-in privilege and define woman in terms of their own experiences alone” therefore, their development of feminism is inherently insensitive to the unique struggles of race and post-colonial structure of racism. The danger of accepting liberal feminism is to legitimise the repression of literary works, and theoretical developments of women of colour within feminist discourse, an aspect Lorde (2007) argues is inherent in distinguishing “white feminism” to universal feminism.

In practise post-colonial feminism does not operate as a single theoretical approach, but more so a theoretical framework to reform already established modes of feminism to include a broader understanding of postcolonial socio-cultural factors such as race and religion. Law (2015) in explaining the effectiveness of post-colonial feminism in regard to equality law tells us “The notion of privilege has not been recognized in legal language and doctrine. This failure to acknowledge privilege, to make it visible in legal doctrine, creates a serious gap in legal reasoning, rendering law unable to address issues of systemic unfairness”.

iii. Practise

This theoretical framework would create new forms of feminism, such as Islamic feminism. In understanding the practical implication of post-colonial feminism regarding legal ideas of equality, justice and protection, the successes of Islamic feminism offer valuable insight. A case study relating to the praxis of Islamic feminism can be seen in the Malaysian organisation known as “Sisters in Islam”. Badran (2009) finds that groups such as “Sisters in Islam” used a post-colonial understanding of feminism to reinterpret liberal feminism in a way that was practically useful in changing women’s equality laws in Malaysia. “Sisters in Islam” focused heavily on challenging policies and legislation that used Islam to discriminate against women. Tackling laws surrounding polygamy, child marriage, repressive concepts of modesty and domestic violence using legal reform within the context and sensitivities of an Islamic society.

Another important case study in outlining the legal consequences of post-colonial discourse in feminist theory is that of the Musawah (Badran 2009) group. This global organisation lobbies the implementation of the international human rights standards defined within the UN “Convention on the Elimination of All Forms of Discrimination against women” albeit reinterpreted within the context of Islamic women. Musawah is a direct example of the influence of post-colonial feminist theory in relation to discourse within liberal feminism as it takes the key concepts of legal reform but integrates the specific practical challenges of post-colonial social structures such as religion.

iv. Criticism

However, post-colonial theory, though a critical theory did not go uncriticised. Marxist feminists such as Sinha (2015) argue post-colonial feminist theory apply a materialist analysis of race, culture and religion in attacking the homogeneity of women in the world. However, if a similar materialist analysis was made of class a contradictory conclusion would be made. Marxists scholars such as Zizek (2005) find that women oppressed by patriarchal institutions and structures do so due to inherent class inequalities perpetrated by the current global mode of production — capitalism. In this sense women of the world do have a common goal in securing equality, protection and justice — the dismantling of the economic mode of production that reproduces and legitimises patriarchy: capitalism. Zizek (2005) furthers his critique of post-colonial theory in arguing their theoretical reliance on identity politics works against the feminist movement as it divides working class women from organising against the class system. Harkening back to the base and superstructure theory discussed in chapter 2(b), even if inequalities exist in the social superstructure (such as religion, culture etc) these can only be changed if the economic base is drastically overhauled or reformed.

Conclusion

The emergence of feminist theory in legal discourse came in the form of liberal feminism (aka the first wave of feminism) seeking legal and political equality between men and women utilising the existing legal structure to reform areas of civil society in which were displayed patriarchal biases, however, these initial ideas of women’s equality were challenged by various philosophical traditions such as Marxism. Marxists argued the concept of legal reform without reforming the economic mode of production were futile in bringing equality to women due to the inherent patriarchy of a class-based mode of production (capitalism). Instead reform must occur within the economic base in order to see change in the social superstructure. Furthermore, Post-colonialist scholars also challenged traditional legal ideas of equality by introducing a framework of understanding women not as a homogenous political entity but as separate in their struggles due to the complexities of socio-cultural structures.

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