Human Rights: A Feminist Perspective
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Human Rights:
A Feminist Perspective
Abstract

This paper explores the ways in which human rights might be understood if women’s experience were the foundation for the theorizing and enforcement. The argument is not that there is but one feminist perspective—indeed the title suggests that there might be many. Rather, it is argued that, if one works from the life experiences most common to women, the principles of human rights that would emerge would not necessarily reflect the universe of such rights as they are commonly understood by liberal nation states. While the prototypic “human rights” case involves the individual political activist imprisoned for the expression of his views or political organizing, forms of oppression that do not fit the Bill of Rights model of liberty are rarely recognized in international understandings or national asylum laws. These forms would include, inter alia, issues related to marriage, procreation, labor, property ownership, sexual repression, and other manifestations of unequal citizenship that are routinely viewed as private, nongovernmental, and reflective of cultural difference.

Feminism and Law in Context

Perhaps the most profound intellectual stimulant to jurisprudence in the past generation has been the development of feminist approaches to the study of law. Whereas a decade ago, significant obstacles were encountered in the process of accessing this literature, 1 by the mid-1980s feminism [End Page 509] became as deeply rooted in legal scholarship as it had earlier become in several of the humanities and social sciences. The myriad questions asked and approaches employed under the feminist rubric have generated a dialogue that raises fundamental questions about the nature of law: whom the system(s) serves, the social conditions it both reflects and impacts, and the possibilities for its transformation.

Virtually all areas of law have felt feminism’s influence. Although those of most immediate material concern to women, such as family law, employment discrimination, and reproductive rights, were the first to be analyzed from feminist perspectives, 2 other less obviously gendered subjects, such as torts, criminal law, and constitutional law, have similarly been viewed through feminist eyes. 3 Interwoven with these doctrinal analyses have been perhaps the most challenging critiques which address the law as an inherently gendered system and suggest that its processes and principles resonate with only male experience. 4

Feminist developments in law did not, of course, occur in intellectual isolation. As is commonly the case in sociopolitical scholarly movements, law-oriented insights about the role and function of gender as a socially constructed and constructive variable drew heavily upon the research and literature in the fields of psychology and sociology. Landmark works like Gilligan’s In A Different Voice, 5 Chodorow’s The Reproduction of Mothering, 6 and Epstein’s Deceptive Distinctions 7 addressed not only the status of [End Page 510] women within (US) society, but attempted to explain the underpinnings of this “different” life experience. The application of insights such as these and myriad others of the 1970s and 1980s provided important foundations for feminist theorizing in law. 8

Feminist Studies and Jurisprudence: the Focus of Concern

Feminist jurisprudence has certain defining characteristics that are shared with feminist studies generally. These include a focus on women’s experience, especially the disempowerment that has been ubiquitous. In a world in which women perform two-thirds of the hourly labor and receive 10 percent of the income and hold barely 1 percent of the property, 9 disempowerment is clearly economic. In a world in which women are more than 51 percent of the population, fewer than 5 percent of the heads of government, and fewer than 10 percent of the (lower house) parliamentarians, 10 disempowerment is clearly political. In a world in which it is acceptable, inter alia, for women to be raped by their husbands; for female detainees to be raped by the police; for women to be educated at half the level and literacy of men; for women to have no access to birth control or abortion; and for women to have no unilateral freedom of movement domestically or internationally, disempowerment is clearly social. To these indicia of societal inequity might also be added the practices of dowry murder, the aborting of female...