Author: Anjali Kumari

ABSTRACT

Feminist jurisprudence examines how law and society reflect and reinforce gender inequality. This article introduces the concept of feminist jurisprudence and its evolution across the various waves of feminism. It discusses Carole Pateman’s sexual contract theory to reflect the ground reality of women’s conditions in a patriarchal society, and also explores how modern feminist jurisprudence shapes contemporary legal reform. This article highlights the relevance of feminism in promoting gender-sensitive and inclusive justice. 

UNDERSTANDING FEMINISM AND FEMINIST JURISPRUDENCE

Feminist jurisprudence is the study of the workings of the law from the perspective which foregrounds the implications of the law for women. It encompasses law as a theoretical enterprise, as well as its practical and concrete effects in women’s lives. It also encompasses various theories and ideologies proposed by different scholars. It is a set of movements aimed at defining, establishing, and defending equal rights and opportunities in political, social, and economic fields for women. 

Its origin can be explained in various ways; some see it as a growth of Civil Legal Studies. Women studying law also had an impact, as students began to raise questions about a curriculum which ignored concerns of women, such as rape, domestic violence, unequal pay, sexual harassment, etc.

In a narrow sense, it can be divided into two; first, they explain how the legal system in the past has played a crucial role in suppressing women in society. Second, the feminists use the legal system itself as an instrument to resolve the issue by rewriting the law to provide gender equality. It was a major point worldwide, enabling women to become independent and utilise their skills and resources to seize new opportunities. 

WAVES OF FEMINISM

• FIRST WAVE

The term “The First Wave of Feminism” was first used in 1968, in an article entitled “The Second Wave: What Do These Women Want?” written by journalist Martha Weinman Lear, published in The New York Times Magazine. It took place mainly in countries like the USA and the UK from the 1820s to the 1940s, when women were treated as second-rate citizens, and it was represented by the liberal feminists.

The primary goal of this wave was to have equal voting rights for women. It is considered an important era in history, as it brought about significant social change and laid the groundwork for greater equality for women in various aspects, including the right to citizenship, the right to vote, the right to education, and the right to own property.

The main focus was on political and legal rights of women, further supporting the idea of equal property rights and a dignified position within the household for women. It also stressed the economic, sexual and reproductive rights of women in society. Three types of feminism, Liberal Feminism, Radical feminism and Cultural feminism emerged during this movement. The 19^th Amendment to the US Constitution, passed in 1920, granted women the right to vote. Women in most European countries, such as Russia and Germany. Austria and the UK received the right to vote in 1918, Canada in 1920, Ireland in 1928 and Spain in 1931.

• SECOND WAVE

The wave’s duration began in the 1960s and lasted for three decades. The primary objective of this wave was to promote sexual and reproductive rights. The term “Second Wave Feminism” was introduced by Martha Lear in the year 1968. It emerged during World War II, when many women entered the workforce. Many types of feminist movements, such as Marxist feminism, socialist feminism, and ecological feminism, emerged.

This movement began in 1968 with a protest led by the Miss America Pageant in the USA. Many activists observed that “women were victims of a patriarchal, commercialised, oppressive beauty culture”. It extended the domain of feminine politics against sexist ways of men to the private lives of women. This wave was not only led by white middle-class women of the West, but it was also propelled by both white and non–white women of the West, as well as in developing nations. “The Personal is Political” is a slogan coined by Carol Hanisch in 1969. Combahee Milstein coined the slogan “Identity Politics”. Each slogan reflected cultural and political inequalities they also displayed that race, class and gender oppression are all closely interrelated.

• THIRD WAVE

The duration of this wave extended from the 1990s to the 2000s and was represented by diverse modes of ideas and thoughts. It highlighted the issues of heteronormativity and body positivity. The term “Third Wave Feminism” was first coined by Rebecca Walker in her influential article “Becoming the Third Wave” in 1992. Activists of this wave believed that they had “more opportunities and less sexism” than those of the first and second waves. This wave is also called “power feminism” because during this period, women were strong and rebellious, and working women in various occupations were not subjected to a sexist patriarchy. It started through the growth of the postcolonial and neoliberal world order. The idea of “Universal Womanhood,” which aimed to move communal objectives to individual rights, emerged during this period and reflected various ideas, including cultural feminism, black feminism, and postmodern feminism.

• FOURTH WAVE

This movement started in 2012 and is based on online technology. Feminism originating from social networking sites is considered the fourth wave of feminism. It is based on interactions and contacts among women, primarily occurring online. During this movement, social justice campaigns emerged on social media, including the #MeToo and #TimesUp movements. It also focused on transgender rights.

CAROLE PATEMAN’S SEXUAL CONTRACT THEORY

The original social contract theory is a sexual – social pact; however, the perspective of the sexual contract has been neglected. The standard viewpoint of social contact theory does not encompass the entire theory, and contemporary contract theorists provide no indication that half the agreement is missing. The sexual contract is also about the genesis of political right and describes why the exercise of the right is legitimate, but this contract is about political right as patriarchal right or sex right, the power that men have over women. It explains how patriarchy is formed. The new civil society that emerged through the original theory is a patriarchal social order.

Social contract theory is presented as a story about freedom. It is broadly interpreted in two ways; one interpretation is that the citizens of the state exchange the insecurities of natural freedom for equal, civil freedom, which is safeguarded by the state. Freedom is universal in civil society. Another interpretation is that civil society emerges from the original contract after paternal rule, hence appearing to be anti–patriarchal or post–patriarchal. 

According to Carole Pateman, social contract theory represents freedom, and sexual contract theory represents subjection. The original contract contains both freedom and domination. Men’s freedom and women’s oppression are created through the original contract. The true meaning of civil freedom cannot be understood without the sexual contract and highlights how men’s patriarchal rights over women are established by contract. Civil freedom is a masculine attribute and depends upon patriarchal rights. The original theory is both the sexual contract and the social contract. It is sexual in the manner that it establishes men’s political right over women and also in the sense of creating orderly access of men to women’s bodies. The original contract establishes ‘the law of male sex right’. It is the means through which modern patriarchy is created. Sir Robert Filmer argued that political power was a form of paternal power and that patriarchal power was the foundation of political right.

Thinkers like Locke argued that paternal and political power are distinct concepts and that the contract is the source of political rights. Political right originates in sex – right or conjugal right, whereas paternal is not the original source of patriarchal power. Contract theorists incorporated conjugal rights into their theories, transforming the law of male sex rights into its modern contractual form. 

THE MODERN FEMINIST JURISPRUDENTIAL TREND

In the words of Nancy Holmstrom, “feminism is an attempt to understand women’s subordination as a coherent and systematic way that integrates class and sex, as well as other aspects of insanity such as race, ethnicity or sexual orientation, with the aim of using this analysis to help liberate women.”

The social and cultural development of the contemporary era has given rise to feminist legal concerns. Judiciary’s response to feminism can be seen through its exercise of judicial power and is making efforts to take justice to women who were discriminated against and exploited. There are many judgments where courts have decided in favour of women and highlighted a humanistic approach of the court in cases involving women. Some of them are mentioned below:

Mukesh & Anr. v. N.C.T. of Delhi & Anr. 

The Supreme Court in this case observed that “offences against women are not women’s issue alone but a human rights issue. Increased rate of crime against women is an area of concern for the lawmakers, and it points out an emergent need to study in depth the root of the problem and remedy the same through strict laws. There is a number of legislations and numerous penal provisions to punish the offenders of violence against women. However, it becomes important that gender justice does not remain only on paper.”

Shayara Bano v. Union of India

The Supreme Court in this case held that the practice of talaq–e–biddat or triple talaq is unconstitutional and affirmed that arbitrary religious practices cannot be protected if they violate fundamental rights, hence it was not protected under Article 25 of the Constitution, as it is not an essential element under the Islamic religion.

Mohd. Ahmed Khan v. Shah Bano Begum

The Supreme Court in this case held that a Muslim woman is entitled to maintenance from her husband even after Iddat period. Section 125 of the CrPC, which mandates the maintenance of a wife, is applicable to all citizens, irrespective of their religion.

CONCLUSION

Feminist jurisprudence has evolved significantly through the four waves of feminism, each addressing the changing roles, needs, and challenges faced by women. Carole Pateman’s theory of the Sexual Contract revealed how patriarchy is embedded in the foundations of modern civil society, emphasizing the hidden structures of male dominance.

Modern feminist jurisprudence recognizes that law is not neutral—it often reflects patriarchal values. It seeks to reconstruct legal systems to be more just and responsive to women’s lived realities. Landmark Indian judgments like Shayara Bano, Shah Bano, and Mukesh v. State (Nirbhaya) demonstrate a shift toward a more feminist and humanistic legal interpretation.

In sum, feminist jurisprudence is a continuously evolving legal philosophy that strives for substantive equality.

References:

1. FEMINIST JURISPRUDENCE 2012 8 MLJ 27.
2. Haradhan Kumar Mohajan, Four Waves of Feminism: A Blessing for Global Humanity, Studies in Social Science & Humanities, SEP. 2022 VOL.1 NO.2, pp. 1-8. Paradigm Academic Press.
3. Carole Pateman, THE SEXUAL CONTRACT 01 (1988).