Feminists' view of law as valedictory of male privilege and power has changed little since the 19th century. Both Victorian feminists as well as 20th century contemporary feminists find the law as supportive of male domination. While in the Victorian era, laws were more open in presenting women as subjected to male supremacy in accordance with Victorian sentiment and family division of labor, contemporary feminists also find contemporary law based on the privilege given the male. Both Victorian and contemporary feminist criticisms of the law rely on the liberal political theory of philosophers such as John Stuart Mill and John Locke to criticize their respective situations of injustice created by the law. At the same time, however, they find this same theory establishing of the male supremacy in law that these feminists seek to change. Both contemporary and Victorian feminist criticism of the legal theory supportive of the law find that by differentiating between a public sphere, i.e., work, commerce, industry and politics, and the private sphere which revolves around domesticity and the home, law reinforces the view of males as free, irresponsible, and autonomous, and of women as dependent and responsible for the essential work of rearing children and maintaining the private sphere of the home.
This paper attempts to shed light on the way in which women have historically been viewed as second class citizens-at least since the Victorian Era. Furthermore, I hope to convey how feminists in the Victorian Era grappled with the same politics of changing laws through the democratic process that feminists in the 20th century have been entangled with. Through my exposition of the difficulties feminists faced in attempting to both use liberal political thought for gaining equality for women as well as critiquing it as the source of women's inequality, I hope to show the difficulties of bringing practical equality about. Lastly, the paper will shed light on the distinction between public and private that both society and political theory have reinforced. By examining how the problems faced by feminists when dealing with the institution of the law in the Victorian era are similar to their qualms about it today, I hope to suggest how law as based on the political theories of thinkers whose philosophies are behind our laws and government come up short in fostering a sense of equality between men and women. This suggests how what we have grown up with believing, in the equality of people in our democracy creates a sense of frustration and despair in our system of politics.
As in today’s society culturally held beliefs of idealized family life and structured gender roles worked against Victorian feminists’ desire to change the way women were defined in society, especially according to law dealing with the relations between husband and wife in the domestic sphere of the family. For the Victorians the home exerted a distinct and unique impression on the psyche. As Mary Lyndon Shanley points out in her Feminism, Marriage, and the Law in Victorian England, 1850-1895, “when most Victorians spoke or wrote about themselves, they testified to the importance of home and hearth in their constellation of values” (4). Shanley quotes John Ruskin, the author of “Of Queen’s Garden,” who in 1864 wrote, “This is the true nature of home--it is the place of Peace; the shelter, not only from all injury, but from all terror, doubt, and division” (4). To the Victorians are attributable such sayings about the home as “Home, Sweet Home” and “East, West, home is best” (4-5). These testimonies of the home, which have spread worldwide, also carried messages regarding the role of women, “the sex” (101), as Victorians called them who were responsible for exerting the effort necessary for up keeping the idealized value of the home. These cultural verities emphasized the ideology of the home and how important it was to the Victorians to preserve the identity of the home even at the cost of demeaning any claim by adult women-daughters and wives-- to social and legal equality, individuality or rights independent of the men they were attached to. One of the challenges feminists faced in vying for fairer laws governing the domestic sphere of the home then was the dismantling of this, comforting, yet also tyrannical view of the home as an island of tranquil harmony rather than a battlefield of wills between members of the family, especially husband and wife. Social sanctification of the home as a place of tranquility and obedience gave blessing to the patriarchal rule of the male head of the household to control the role of his spouse as well as set apart for himself the unpredictable, exciting, and valued world of war, friends, and commerce. Towards the end of maintaining a implicit division of labor between husband and wife in a marriage, Victorians gave prominence to liberal political theory that divided the world between the private and the public as well as emphasized the natural sex difference. Victorians felt that women had to remain in the realm of the private sphere because of their function in nature as child bearers and providers of care. This tacit division of labor helped to maintain women in their place outside of civic life. As Shanley points out, “Women’s proper functions were assigned by nature, and it was folly and hubris to try to alter them. ‘As Patrick Geddes and J. Arthur Thomson asserted in The Evolution of Sex, “What was decided among the prehistoric Protozoa, cannot be annulled by act of Parliament’” (6). Like their views of government formed on the basis of liberal political theorists such as Locke who had held that Nature was the realm out of which men evolved to become human, form societies, governments, social contracts and the state, Victorians believed that Natural law established ironclad identities that could not be toyed with by human legislators, nature’s minions. As Shanley writes, Liberal theorists since the seventeenth century had assumed that there was a natural division of labor between men and women. The presumed distinction between the “public” world of politics and law and the “private” world of the family and had been invoked by thinkers from John Locke onward to exempt family relationships from the rules of justice that were to govern the public realm (4). It was these attitudes held by the legal establishment that Victorian feminists had to challenge and overturn in order to form the fairer society that they envisioned. Exploring the means by which Victorian feminists such as Barbara Leigh Smith, an early proponent of marriage reform, formed coalitions in Parliament by which fairer laws could be enacted to gain spousal equality is beyond the scope of this paper. It was attitudes based on the almost religious belief that gendered roles were given by nature rather than formed by culturally held attitudes of male superiority given in laws that provided significant obstacles Victorian feminists had to overcome in order to gain the spousal equality sought in marriage.
Laws, social practices, and economic structures which narrowed women’s choices for meaningful roles in society, compelled women to marry. Over 90% of women in Victorian England had married one time or another; this is why exploring the realm of marriage laws as a means for male domination over this large demographic of the female population proves suggestive of the patriarchal nature of Victorian society. Among the most repressive laws which subordinated women to men in marriage was the common law doctrine of coverture, which enacted into law what Victorians felt were roles ordained by the natural and theological order. For the Victorians, as God through marriage had made men and women “one body,” the law had made husband and wife “one person” (Shanley 8). Once again Victorian sentiment exerted an implicit tyranny that had real world effects. Women as coverted (from the French couverte) hidden or made secret from society as independent human beings through marriage could not sue or be sued unless husband was also party to the suit; they could not sign contracts unless her husband joined her; they could not make a valid will unless her husband consented to its provisions (Shanley 8). Through this and other laws which turned over women’s property to their husbands, women in this sense came to be seen as having suffered “civil death” through marriage. According to a feminist pamphleteer, the common law with respect to married women, combined with the ecclesiastical doctrine that marriage was indissoluble, amounted to a ‘nefarious custom’ by which women when they were married were ‘despoiled of their money, goods, chattels, and condemned to prison for life’” (9). These rigid chains of marriage were reinforced in addition by the liberal political theory of the state that allowed male supremacy to reign supreme as the basis of justice in the private realm while only providing for a semblance of “equality” and “justice” in the public realm to those it considered men Civil Rights leaders in the United States in the 60’s sought civil justice by appealing to justice and equality in the US Constitution which is based on the writings of liberal political thinkers such as Locke. So Victorian feminists, in order to acquire justice and equality utilized the ideals of equality and freedom contained in liberal political theory to demand spousal equality(12). This quest for spousal equality based on liberal political theory did not take into account inequality enforced by economic structures of capitalism or race. In basing their quests for equality on abstract liberal political theory, feminists left intact the structures accounting for inequality. While they achieved success, they were never able to attain full spousal equality with husbands. The use of liberal political thinking to attain equality continues to be a sore in feminist quests for equality in contemporary society.
Contemporary feminists generally agree that law is male. Judit Baer, author of Our Lives Before the Law: Constructing a Feminist Jurisprudence, includes several chapters on the subject of the male basis of the law, according to which women are seen as dependent and responsible for their plights according to legal language and males are generally regarded as free and autonomous. While Victorian feminists may have only had inclinations toward this statement, contemporary feminists such as Baer are more emphatic of the need for a feminist jurisprudence. Feminists do disagree, however, on how to bring about a more equitable basis of law. The general consensus seems to be that the strategy of using liberal political theory demands revision as it often neglects the societal basis of inequality and is based on the very notion of independence and autonomy that feminists have sought to criticize as the model of law’s male bias. Women have to be placed in their contexts of race and social class, all of which complicates attempting to attain equality based on abstractions such as humanity. As Baer writes: “Feminist jurists tend to overcorrect for the male bias of conventional jurisprudence, concentrating so hard on women that much of what affect women’s lives goes unexamined. So nobody-the ancients, the liberals, the Marxists, or feminists-has yet to come up with a concept of what it means to be a human being, a man, or a woman which makes equality possible” (192). Lastly, a source of inequality that lingers from Victorian feminism is the public private dichotomy. As Baer writes, Both character jurists and situation jurists have pointed out that the basis defect of liberal privacy doctrine is not its presumption of equality between relationships but the public-private distinction itself. Conventional theory divides life into ‘spheres,’ women are forced into one sphere, and the activities located in that sphere are devalued. Life in the private sphere makes women vulnerable to men’s power (189). It seems that the public and private sphere distinction as set up by political theory that the Victorians sentimentalized into the ideology of the home is alive and well as a source of legal inequality for women today. Despite gains justice has not penetrated all areas of this sphere, hidden from public view, that women are said to occupy.
Baer, Judith A. Our Lives Before the Law: Constructing a Feminist Jurisprudence. Princeton: Princeton University Press, 1999.
Shanley, Mary Lyndon. Feminsm, Marriage, and the Law in Victorian England, 1850-1895. Princeton: Princeton University Press, 1989.
This page was written by Katie Ruckert, and is maintained by Melanie Ulrich.
This page was last updated Saturday, 18-May-2002 08:28:11 CDT