Gender and Law: Implication for legal education [Archives:2006/1008/Education]

December 18 2006

Anupma Tripathi
[email protected]

Legal notions of equality of men and women are full of tensions and contradictions. Law recognizes duality (right or wrong, guilty or innocent, win or lose) rather than diversity. Social law constructed according to “natural law” sets up sex as the primary way to classify persons. Women are classified by sex, as different from men. When this standard prevails, then “Real differences” are alleged to justify differential treatment; women are not considered as “similarly situated” to men. This may work to the advantage of women (as in affirmative action laws or the provision of special training programs for women) or to the disadvantage of women (as in “protective legislation” that excludes women from certain tasks or occupations on the basis of their biology or concepts of nature). When women are treated as same as men, and as exactly like men, legal equality takes no cognizance of social and economic inequalities. The study of women that places women's own experiences in the centre of the process, helps modern movement to promote the full equality of women with men and their high valuation as human beings.

Socially, Islam emphasizes the more immediate family tie existing between a husband, his wife, and their children and aims at elevating the status of the female within the family and the society. The feminist community helps in exploring how gender issues and related issues in law have exerted their impact on the society.

Nowadays, gender-neutral language has gained support from major book publishers, professionals and academic groups. The practice of assigning masculine gender to neutral terms comes from the fact that every language reflects the prejudices of the society in which it evolved. English is a case in point. It evolved through most of its history in male-centered patriarchal society. For example “Man” was once a truly generic word referring to all humans; but has gradually moved in meaning to become a word that refers to adult male human beings. This is not about freedom of speech, there is no rule insisting on gender- neutral language. This is a more pertinent issue involving audience and awareness.

Sometimes the legal system holds out limited protection. It does, however, hold out choices as well. Understanding how the law works in this case depends on understanding how women make choices and exploit the limited opportunities available to them. Law is often depicted as operating on women in particularly unfavorable ways. While such images are not always inaccurate, they are incomplete.

In recent years, the understanding of the Arab world and Islamic Law by the rest of the world has been enriched by new attempts to understand women as agents who craft their own lives and history, even as they operate within sharp social, cultural and legal constraints. Since personal status law governs areas like marriage, divorce, custody, it is often the area of law that treats women specifically and deliberately as women; whereas other areas of law like civil and criminal laws need to be more gender- oriented in their application. In cases where legal system neglects the legal environment that governs women, they always have a part to play in defining their position.

In fact, while women's weakness is generally difficult to deny, it does not erase the ability of women to make positive use of law in negotiating their rights and relationships with family members, employers and others.