I raised a lot of questions about a particular law in the last post, as an example of how the law does treat women as inferior to men. The law relating to rape assumes that everything apart from penis-vagina penetration is ‘unnatural’. It assumes that marriage is blanket consent to sexual intercourse. It assumes that consent to sexual intercourse can be given at the age of sixteen. It assumes that men cannot be raped. It assumes that the word of a rape victim is worth less than that of a rapist (or did, till quite recently). Because of these assumptions, child abuse is treated on par with rape. A married woman cannot prosecute her husband for rape. Men can never claim to have been raped. Because of them, only a small percentage of rapes that actually occur, even get reported, let alone prosecuted.

These assumptions reflect social mores that existed when the law was framed (and the social mores that exist even today), and those social mores are based on a gender imbalance of power. They reflect the norms of a patriarchal structure, in which men’s control over women, the idea that women’s ‘chastity’ reflected on the patriarch’s ‘honour’, are unquestioned. And by reflecting these norms and giving them sanction, the laws give them the support of State power, and reinforce the power structures of patriarchy.

Of course, I’ve only talked about one area of law, but this pattern of reinforcing patriarchal norms permeates all law. “Personal Laws” – those that govern marriage, divorce, succession, adoption and so on – aim primarily to codify social and religious practices, and it is only recently that the manner in which these social and religious practices discriminate against women have even become a matter of debate, let alone being addressed. Commercial laws are seen as neutral because they deal with commerce – and it is assumed that commerce is blind to gender. But we all know that is not true – even what we believe is ‘commercial activity’ is based on the acceptance of traditional gender roles. For instance, a person driving a car for another is engaged in commercial activity, but a person taking care of another’s child is usually not (a businessperson is entitled to claim a tax deduction for a driver’s salary, but the nanny’s salary is a ‘personal expense’ and not deductible). Labour laws, which are supposed to encourage women to join the formal labour market, again base themselves on traditional gender roles. Maternity leave is compulsory, paternity leave is not; childcare must be provided by any employer who employs more than a certain number of women.

All law is based on the assumption of a society in which people play roles that are assigned to them on the basis of their gender – a family where father is the head, mother stays at home and takes care of the house, and the children go to school – the family in a social studies textbook of not very long ago. It is not only based on those assumptions, it actively excludes people who don’t fit into this pattern, perpetuating power imbalances that ought not to exist.

It is in response to this structural patriarchy that the women’s movement responds, when it calls for changes in the law. Feminist calls for law reform are thus aimed at dismantling this hierarchical power structure. Let me caveat – feminism is not one school of thought, but many. So the solution to the problem of dismantling gender is not one, but manifold.

In any case, one thing is definitely not true – that feminism seeks to replace the existing power imbalance with another, in which women are on top. While it is true that feminism began with the women’s movement, and is focused on women’s empowerment, the idea that it threatens men is one that originates in the unimaginative mind; the mind that refuses to look beyond bipolar shifts of power, as if power is a scarce resource, over which men and women fight. This is the mind that constructs the feminist bogeywoman who comes to snatch power and rights from men, to leave them disempowered and impotent.

The opening of imagination to the possibility that redressing gender imbalances, overthrowing traditional gender roles, frees all people to exploit their potential to the full, is what I will explore in the next post.


5 Responses

  1. I love the way you make every point clear and explain exactly what you mean.
    Why’s this post called “rinsing”?

    – Tharunya

  2. Thank you; I think it might be a result of the teacher-persona!
    The post’s called rinsing because I hope that’s what it does – the last post focussed so much on one particular law, this one’s intended to show how that is just an illustration of the general nature of the law – sort of rinsing off the dye to even out patches? And the next step is where the patterns come in, as intricate and detailed as I can make them!

  3. “In any case, one thing is definitely not true – that feminism seeks to replace the existing power imbalance with another, in which women are on top…”

    Surely, empowerment(the excercise of “rights”), implies the excercise of power at, or against, or on a subject. Empowerment of women, or any individual or collective of any description, is allocation of power that is excercised as against (for example) society in general, which is manifested by a family, a husband, a colleague or a street romeo.

    In such power relation, empowering of one group necessarily disempowers another? For example, with the example of sexual consent in marriage, one way of reading it would be to say that a husband has a “right” to non-consensual sexual relations with his wife.

    By bringing in sexual consent into marriage, or empowering the woman, that “right” is being taken away, don’t you think? And in saying that such empowerment does not threaten is applying subjective notions of morality?

    Empowerment is very much an act of taking away. Right or wrong depends on what people think at the time?

    Ofcourse, one could start exploring distinctions between positive rights and negative rights, but this is more fun.

    And I would be interested to hear what you say about Dowry prohibhition law, and S.498A in particular. That has altered power relations in the family, I think? In the name of empowerment? As would any kind of move to shift presumptions, or standards of proof in sexual crimes?

    Also illustrates why the distinction between positive and negative rights is at best theoretical.

    All of which boils down quite simply to the worry that with more power comes more possibility of misuse?

  4. This is hardly a question of positive and negative rights, as much as a question of what limitations we seek to impose on power. For too long, the law has tended to see relations between men and women as not governed by the limits that govern those between men inter se. And that is what the feminist movement has aimed at changing. The question of specific laws: 498A, or adultery, or even the DV Act, I promise, I will address soon.

  5. Good, good.

    Was thinking Erimentha might have retired.

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