Social Power Series: Gender, Justice and Law Reform

#BLOODLESSREVOLUTION SERIES ON UNDERSTANDING SOCIAL POWER

PART 1: GENDER, JUSTICE AND LAW REFORM

Introduction

I am writing this series primarily as a resource for mediators, restorative justice and ADR practitioners and lawyers who are committed to learning more about social power and how it is distributed. I come across too many matters where good mediators fail to understand and apply a good understanding of power dynamics, especially as they relate to social power, and possibly inadvertently allow unequal power dynamics to result in inequitable or unworkable and sometimes even life-threatening conclusions.

I also feel we need a growing body of work conscientizing legal practitioners to power dynamics so that they may feel more ethically encouraged and empowered to counsel clients who hold more social power than there adversaries ,into taking more problem solving approaches as opposed to the winner takes all approach.

So I intend to take a look at race relations, gender, economics, ability and other issues that may influence social power relations.

In this article, I will focus primarily on Gender and specifically on unpacking related concepts.

Patriarchy

This concept was first used by social scientists to describe a system of government where men held political power in their capacity as “heads of households”. Patriarchal power extended not only over women but also over younger men. The concept was introduced into the discourse by radical feminists in an attempt to describe social structures that allow men to dominate women and also younger men and children.[i]

Different schools of feminism articulate the functioning and relative importance of patriarchy according to their theoretical explanations of the causes of women’s oppression. So for instance, radical feminists focus on the power men wield over women’s sexuality and reproductive functions and feminist psycholanalysts emphasize the symbolic dominance of the father in the formation of the female personality.[ii]

In the 1970s Marxist and radical feminists debated the relative importance of capitalism and sexual oppression as causes of women’s subordination resulting in various theories about the interation between the systems of capitalism and patriarchy.[iii]

Hartmann explains how sexuality and identity are used to suppress women in public spaces eg sexual harassment of female workers, expecting secretaries to run errands, make coffee and provide a pleasant atmosphere at work. In private spaces cooking, cleaning and the raising of children are left to women. This work is regarded as inferior in contrast to the male role of supporting the family financially, thus re-inforcing the superior status of men.[iv]

The patriarchal dividend

Some radical feminists argue that all men are involved in the oppression of women. This resounds with the recent hashtag and associated debate #menaretrash which proceeded a series of highly publicized acts of violence against women and children. This view may be inaccurate to the extent that it ignores the structural nature of patriarchy and denies the agency of individual men who may consciously go about treating women equally and with dignity and respect. In other words it may ignore the agency of individual men to either accept or reject the benefits of patriarchy.

The systemic nature of patriarchy means even men who refrain from the active oppression of women, can benefit from the structural forces that favour them. For example, even where a man does not act in accordance with sexual norms which may allow him to co-erce women into sex, he has, as a result of his gender, the ability to exercise this co-ercive power.

Even though individual men may make less mainstream choices such as to take up ballet, they, like those who play rugby, benefit from the higher value society places on male pursuits, whether they want to or not.

This is the patriarchal dividend. Benefits may inadvertently accrue simply because society rewards male-ness.

The derivative power of some women and the matrix of domination

Feminist theory and discussion is evolving to take into account differences in ways women are subordinated in different social institutions, different societies and at different times. It is also attempting to consider the effect of class, race and colonialism which may privilege some women over some men. So some women have power over other women and some men in public spaces and in politics. In our country, white middle class women have generally not been oppressed by black working class men and have actually participated in the economic exploitation of both black women and black men.

It’s important, though to understand that, generally speaking, this power is derived from a white middle class woman’s family and class connections to a powerful man or men to whom they may be subordinate within private spaces.

The matrix of domination means that there are few pure victims or oppressors. Each individual derives varying amounts of penalty and privilege from the multiple systems of oppression that frame everyone’s lives.[v]

The influence of race and class however never negates the effect of gender on the relations between men and women who belong to the same social, racial and economic classes. Patriarchy is common to all social and racial classes and as former Constitutional Judge Sachs has pointed out is “one of the few profoundly non-racial institutions in SA”

But the particular outworkings of patriarchy differ according to the time, place and community in which it is located.

Six Systems of Patriarchy

Walby identifies six systems of patriarchy which occur in all societies and which interact with each other in different ways, sometimes re-inforcing and sometimes counter-acting each other. These are found within:

1. Mode of production
2. Paid work
3. The state
4. Male violence
5. Sexuality
6. Cultural institutions

I will try to unpack each of these further in future articles. But for now it is important to understand that these institutions within societies uphold male power and exist independently of the intentions and actions of individual men. It is also important to understand that to a large extent, changes in power relations depend on public interventions in power relations both at a legal and a political level in the relations between men and women in private spaces of family and sexuality.

Patriarchal interpretations of justice and exposing male-centred assumptions as part of law reform

It is also important to understand that patriarchy extends to structures of legal and other forms of reasoning so that concepts of objectivity and reality are defined in terms of male interests and perceptions.[vi]

This seems to indicate that universal categories like “workers” and “individuals” are not gender neutral but they reflect the experiences of men and male workers.

Patriarchal interpretations of justice and equality exclude qualities like emotion, relationships and care which characterise the lives of women, while edifying abstraction and independence which are associated with male behaviour in public spaces

Sex, gender, sexuality and sexual orientation

Sex refers to the biological and physiological differences between men and women.

Gender refers to the differences which societies and cultures ascribe to people on the basis of their sex.

So for example a woman’s ability to bear children and breastfeed them is sexed. Her role as the one who cooks and cleans for her husband and children and as the primary caregiver is a gendered social assumption. So sexual differences may be natural but gender differences may be socialized. So gender may be an ongoing project that requires daily acts of interpretation and reconstruction. Especially so if we are to dismantle the often damaging role of male social power over women in both public and private spaces.

The need for first generation feminists to distinguish between sex and gender arose from the assumption that a woman’s biological differences rendered her more emotional, less intelligent and less able to take part in male pursuits such as education, religious leadership, intellectual and physical labour and politics.

Gendered assumptions and the structure and logic of law

Because social differences could be addressed through cultural change, unlike biological differences which were regarded as immutable, the exposure of gendered or socially constructed differences was an effective way of defying male dominance. So feminist lawyers began to expose the distinction between sex and gender in order to assist in exposing how these assumptions were embedded in the structure and logic of law.

It is useful to understand that gender, in the way in which it focuses on power differences between men and women is an important analytical tool. Acknowledging and exploring the links between gender and other categories of difference like race, sexual orientation and class may all contribute to much needed law reform as it relates to male social power wielded over women and others with less power.

The debate around the legal effect of sex and gender differences is, Bonthuys points out, largely avoided by S 9 (3) of the Constitution which prohibits discrimination on the basis of both sex and Gender.

The question of sexuality has also come to the fore as part of attempts to understand how the social construction of male and female sexuality may assist in gendered oppression. So in patriarchal societies legitimate forms of sexual expression reflect stereotypes of appropriate behaviour. So male sexuality is socially assumed as active, predatory, selfish and aggressive and female sexuality as passive, submissive and loyal. Not only is sexuality gendered in the sense of being socially constructed but it the political or public spaces it sanctions male dominance in sexual interaction[vii]

By defining and stereotyping male and female sexuality by way of sexual dichotomies, patriarchal discourses construct and justify the double standards which allow and even require men to have many sexual partners while women are supposed to be less interested in sex than in emotional and material security.

For women the failure to comply with the aforegoing may lead to them being regarded as different from other women and stigmatized as sluts and prostitutes.

We must bear in mind, that as with sex and gender, race, class, colonialism and religion intervene and influence the meaning of sexuality in all societies.

Stereotypes

Stereotypes originate when differentiating characteristics, both positive and negative, believed to be synonymous with a particular group are by analogy ascribed to all members of a group whether they possess those characteristics or not.

Stereotypes contain both descriptive and normative elements-they describe how certain people are, but also describe how people should behave. The notion that stereotypes reflect “natural” or differences between men and women translates into a view that behaviour that defies stereotypes should be discouraged.

Women who reflect and behave in accordance with stereotypes of good mothers and wives have been rewarded by the legal system by being awarded “primary care” (or the old custody) of the children and protection of their financial interests. Women who reflect stereotypes of bad wives and mothers have been punished by the legal system and their treatment serves as a warning of the dangers of non-compliance for other women. This may be shifting with a growing jurisprudence in co-parenting rights and responsibilities ushered in by the Children’s Act of 2005.

Closely related to stereotyping is the idea of essentialism. This is the idea that there are various essential features which are generally and universally shared by women. These are thought to be “natural” when they may in fact be socially produced.

Given the social pressures to conform to gendered stereotypes and their wide dissemination through the media, religious, educational and other social institutions, it is no wonder that people internalize stereotypical expectations. This means that stereotypes are often justified by the fact that they reflect statistical realities.[viii]

Our point of departure, though, must be firstly that the stereotype may not be the fact and secondly that just because the stereotype may be reflective of reality (under social and other pressure) it may not be harmless and it certainly may not be helpful to dismantling the widespread subjugation of and violence against women and children.

Stereotypes often create serious problems with legal rules in a society that is pursuing equality, described as Martha Minow as the “dilemma of difference”. So it’s true for instance, that in SA, the primary caretakers of children are women. But solutions that are unable to differentiate biological differences from socially constructed ones will generally favour men, because male experience has been the underlying template for legal rules.The dilemma means that women who behave in stereotypically “feminine” ways will be disadvantaged because of their compliance with social demands (for instance they may be rendered completely dependent on a man or men for survival). On the other hand, the legal recognition of these difference between men and women can be said to re-inforce stereotypical assumptions and expectations and thus entrench the status quo.

Liberal feminism aims to eradicate difference between genders to deal with this problem whilst relational or cultural feminism aims to celebrate the differences between men and women.[ix]

Some Constitutional Court Judgements dealing with legal rules based on gendered stereotypes reflect this. See the contrasting judgments of O’Regan J at paras 109-115 and Kriegler J paras80-86 in President RSA & Ano v Hugo 1997 4 SA 1 (CC). See Skweyiya Jand Ngobo in Volks NO v Robinson 2005 5 BCLR 446 (CC) paras 87-96 for failure to acknowledge the ways in which legal rules can re-inforce negative stereotypes of unmarried women.

I will attempt to unpack the issue of sameness and difference in further articles. But it’s important to highlight two points here:

Firstly, it was Sachs J in National Colaition for Gay and Lesbian Equality v Minister of Justice[x] who stated that the Constitution requires the law and public institutions to acknowledge the variability of human beings and affirm the equal respect and concern that should be shown to all as they are. At the very least, what is statistically normally must cease to be the basis for establishing what is legally normative. So what becomes normal in an open society is not an imposed and standardised behaviour that refuses to acknowledge difference, but the acceptance of the principle of difference itself.

The second point relates to the purpose for which one relies on stereotypical descriptions of people. In the past, different treatment has often formed part of legal patterns which disadvantage women and other oppressed groups. By focusing on historical context of differences and on the impact which differential treatment will have on a group, difference can be accepted and used as a tool to eradicated past inequality.[xi]

This can be contrasted with the use of stereotypes such as pregnancy to glorify motherhood at the expense of working women by Willis J in Woolworths v Whitehead[xii] and with the failure of the majority in the Constitutional Court in S V Jordan[xiii] to acknowledge the way in which its judgment re-inforces stereotypes of sex-workers in particular.

Dichotomies in legal thinking

Frances Olsen explains that dichotomies or oppositional pairs or dualisms, have been part of liberal western thought since the philosophy of Plato.[xiv] Dichotomies are a series of opposite categories which structure the way we think and which we may take for granted. Examples are:

Public/private

Rational/emotional

Strong/weak

Objective/subjective

Autonomous/dependant

Culture/nature

Mind/body

The first thing to understand is that in dichotomous thinking, the contrasting elements of the dichotomies are regarded as inherently opposed to one another. So we cannot describe something as weak and strong at the same time. Objectivity and subjectivity, then cannot co-exist. We also cannot then explain that qualities like strength may exist on a continuum between strength and weakness, but we can rather only explain them in terms of what is strong and what is weak. So the grey areas between dichotomous poles may be completely ignored. Furthermore relationships between the comparators may be completely obscured. For example strength and weakness are regarded as inherent qualities rather than aspects of relationships between the things compared.

So in legal rules, the elements represented in these dichotomies may not be equally valuable. Instead the dichotomies may be sexual and hierarchical. So one side of the dichotomy is usually associated with maleness and carries a higher social vale than the other. An example is that strength and rationality are seen as male while emotions and vulnerability with female and as such less valuable or desrirable. Further to this the male and higher values of objectivity, impartiality, reason and intellectuality are associated with public spaces including the legal system. So this has implications for the ability of the legal system to notice and respond to the problems typically faced by women.

Olsen identifies three feminist reactions to gendered dichotomies:

One group rejects the sexualisation but accepts the hierarchy. So they reject the oppositional pair of rational/irrational as associated with the male/female but still attach higher value to rationality than irrationality. This approach can be linked to liberal thinking and “gender blindness” as a tool to create formal equality through the law[xv]

Another group accepts the sexualization but rejects the hierarchy. So oppositional pairs are accepted in their dichotomies as accurately describing male/female behaviour. However the traditionally “female” characteristics are as valuable as the traditional “male” values.

A third group rejects both the sexualization and the hierarchisation. It argues for the debunking and deconstruction of all dichotomies because they are all based on stereotyped and essential beliefs about sex and gender. Moreover, the notion that law could ever be objective or rational is exposed as untrue.[xvi] This group follows a critical approach to law and exposes law’s power, exclusion and reduction

Conclusion

In further articles I intend to further examine the law’s role in power, exclusion and reduction, highlighting the role of dichotomous thinking and imagining ways in which alternative methods of problem solving, dispute resolution and the pursuit of justice may well be located in the debunking and deconstruction of dichotomous legal thinking along with its stereotyped and essentialized understanding and application as it relates to gender and more generally to social power as a whole

 

By: Sheena Jonker

Access to Justice and ADR Network SA

Legal Writer, Educator, Restorative Justice and ADR Practitioner

sheena@accesstojustice.co.za

[i]Walby, Theorizing Patriarchy (1990) quoted in Bonthuys, et al, Gender Law and Justice (2007)

[ii] Bonthuys, et al at 19

[iii] Walby, Theorizing Patriarchy at 5-7

[iv] Hartmann, The Unhappy marriage of Marxism and Feminism.

[v] Collins, Black Feminist Thought: Knowledge, Consciousness and the Politics of Empowerment (1990) 229

[vi] Scales, The Emergence of Feminist Jurisprudence: An Essay. (1986) Yale

[vii] MacKinnon, Towards a Feminist Theory of the State (1989)

[viii] Bonthuys, et al at 27

[ix] Pieterse SA Public Law (2001) 103-108

[x] 1991 1 SA 6 (CC) para 134

[xi] See Harkson v Lane NO 1998 SA 300 (CC) paras 92-96; Pierse at 116-121

[xii] 200 12 BCLR 1340 (LAC) paras 143-147

[xiii] 2002 6 SA 642 (CC)

[xiv] Bonthuys, et al at 29

[xv] Olsen, 1990 International Journal of the Sociology of Law 202-203

[xvi] Taub and Schneider, Women’s substitution and the role of law in Kairys (ed) The Politics of Law 328.