The more important question that we Pakistanis should be asking, is whether, and if so how, the jurisprudential perspectives of the apex court will change in the coming years. Since times immemorial, it has been a burning question among legal scholarship: why is law a reflection of masculine power and authority? To answer this question, ‘feminist jurisprudence’ has developed as a distinct field of legal theory. Professor Ann Scales first coined the term in her attempt to ‘make a feminist evaluation of jurisprudence and a jurisprudential view of feminism’. Since then, this field and its proponents have endeavoured to theorize law from the perspective of that constituency of law, which has been traditionally excluded in its dialectic i.e. Woman.
Recalling her first case as a lawyer, Justice Majida Razvi said she was shocked when a client told her male senior, in her presence, ‘I have given fees for you and not for her. What can this girl do?’.
Conventions of traditional jurisprudence portray the law as a rational and gender-neutral regulation of human conduct, which is far from reality. Critics argue that such theorizing of law actually enshrouds the gendered reality of its subjects. This gendered reality of law envisions the man to be stout-hearted, rational and objective whereas it envisages the woman to be frail, emotional and subjective. For example, common law’s favourite legal fiction is the ‘reasonable man’ or the ‘man on the Clapham Omnibus’. It is a classic example of how law and society is adjudged by male standards. This also signifies that women are expected to adopt the male standard of decision-making and ‘reasonableness’. American Supreme Court justice Ruth Bader Ginsburg argued that there are no distinctive male or female styles of thinking or writing, endorsing Justice Marie Jeanne Coyne’s views that ‘A wise old man and a wise old woman reach the same conclusion’– an apt response to the deep-rooted virile expectations of law, the legal system and legal theory.
The misogynistic genesis of Western legal philosophy can be traced back to Aristotle who claimed that ‘the male is more fitted to rule than the female, unless conditions are quite contrary to nature’. This not only reveals the concealed gender-bias in the philosophy of law, or the patriarchal ordering of law, but also calls into questions the law’s claim of objectivity and rationality. When viewed through an objective lens, Aristotle’s foundational views underpin the functioning of legal systems that operates in an exclusionary fashion. Objective analysis is precisely what lies at the heart of feminist jurisprudence —an attempt to develop a legal philosophy that highlights the inequalities and discriminations in law.
Amongst its multiple facets, feminist jurisprudence encompasses an analysis of the socio-legal discrimination which has customarily denied women access to high public office. One of the central tenets of feminist jurisprudence includes the ‘woman question’. As an illustration, the woman question becomes paramount when, even after formally gaining access to previously excluded categories of employment, women find themselves subjected to inequality. In a recent interview, Justice Majida Razvi, Pakistan’s first female judge elevated to a superior court, noted that a very senior lawyer had once told her that there was no place for women in the superior judiciary. Recalling her first case as a lawyer, she said she was shocked when a client told her male senior, in her presence, ‘I have given fees for you and not for her. What can this girl do?’. This calls to attention another dimension of feminist jurisprudence, which is ‘gender sensitivity’. A few years back, Justice Ayesha Malik, highlighted this aspect while addressing the Lahore High Court Bar Association (HCBA): “Gender sensitization is about realizing that everybody has the same value.”
Feminist legal perspectives help remedy the discriminatory and patriarchal doctrines of a bygone era. The presence of a female judge in the apex court of Pakistan serves an edifying purpose towards raising an inclusive gender consciousness. It is a ray of hope that the highest court of the land will now be more receptive to inequality and discrimination issues. More importantly, it will provide fresh jurisprudential perspectives. Empirical studies by American scholars have found that the presence of female judges in high judicial office display improved methods of legal analysis. A female jurist who is informed by feminist jurisprudence is more likely to ask questions and provide analysis, previously left out by traditional legal thought.
Studies further indicate that feminist jurisprudence applied by a female judge can speak to substantive and procedural legal issues which had discriminatory implications in the past, particularly in cases relating to equal protection of law; procedural fairness; employment discrimination; fundamental rights and minority rights. In addition, female judges have the potential to provide a more pronounced and non-traditionalist judicial voice. This becomes even more likely because apex court judges are typically involved in the development of jurisprudence through contextual analysis, rather than simplified application of customary legal principles.
Judges represent the law, and when inequality is reflected in the law's construction then women jurists guided by a feminist jurisprudence are needed to ensure the representation of women as equal subjects of law. These are indeed new beginnings in the judicial history of Pakistan.
The author is a law student at the University of Sindh.