Introduction
Women has been one of the most vulnerable section of the society since ancient times and this situation keep on deteriorating. With the advent of the eras the women have been the significant victim of the various atrocities in this patriarchal world. But we should also recognize the few significant works of various jurists and activists of the society who helped women in achieving the equal dignity and equal rights in this male dominating society.
The evolution of the women rights at international level has gone through various legal, social, economic and jurisprudential aspect. Bifurcating the views in two folded manners firstly the naturalist school and secondly the positivist school of jurisprudence and their views on the women’s right at international platform. The naturalist school of jurisprudence mainly concentrated towards the rights based on moral principles while the positivist focused on rational, practical and logical enforcement mechanism. While another group, prominently known as the feminists, their theories challenged the current structure of society and bifurcation of resources and rights.
Natural School of Jurisprudence as Foundation of Women’s Rights
It would thus be seen that there is no unanimity about the definition and exact meaning of natural and the term ‘natural law theory’ has been interpreted differently at different times depending on the needs of the developing legal thought. But the greatest attribute of the natural law theory is its adaptability to meet new challenges for the transient society. The supporters of natural law theory believe that there is a basic element in law which prevents a total separation of ‘law as it is’ from ‘the law as it ought to be’. Values and undoubtedly plays an indispensable role in the development of law.
The key exponents of natural law theory are Aristotle, Thomas Acquinas and John Locke and they argued that rights are inherent in nature and has been derived directly from the nature therefore contain the elements of moral principles rather than any outside force or any state imposed statues. Aristotle although not being the direct exponent of women’s right but he discussed about the equal dignity. While Acquinas discussing about his discussions on justice, he included few elements of women’s right but he majorly sticked on the patriarchal society.
Discussing the thoughts of John Locke, he has been the known for his famous social contract theory. Although his writings not explicitly advocate for the gender equality but his ideas acted as a principle for many feminist movements. John Locke emphasized on the protection of three main rights, namely, right to life, liberty and property which were inalienable and necessary for the wellbeing of the individual. The nineteenth century doctrine of laissez faire was the result of individual’s freedom and rights, matters relating to economic activities largely supported by Locke’s theory.
Mary Wollstonecraft in her book A Vindication of the Rights of Women (1972) argued that the exclusion of women from political and educational arenas was unjust and contrary to rationality and his ideas are largely influenced by the natural law theory.
Contending about the modern world developments, the statutory provisions of the Universal Declaration of Human Rights are majorly align with the reasoning of natural law theory and its implementation has been obstructed by cultural relativism and state sovereignty. One of the example of the same is the Article 1 of the UDHR which explicitly states that “all human beings are born free and equal in dignity and rights.”
Positivist School of Jurisprudence as a step towards Codification
The major premise to deal with this school of jurisprudence is to study law as it is, in the form that it exists in the present form. It says that we need to study law as its first principle as they actually existing in the legal system. This school is known as positivist as it focuses more on rational and practical thinking and rather than discussing about the future or past of any law it focuses on the law what it is actually in existence i.e. positus. Jeremy Bentham and John Austin are the major proponents of positivist school which view law as a structure of which act as a command of the sovereign and backed by sanctions and deterrence in case of disobedience. They focus more on bringing the law on paper hence the codification rather than any reliance on moral principles.
Jeremy Bentham’s theory of utilitarianism which discussed the greatest happiness to the greatest number of people has indirectly influenced the women’s status at international level as it advocates for the necessity of the policies that increases the education among women also and he argued that such policies will maximize the societal wellbeing therefore leading to the greatest happiness to the greatest number of people. Benthan didn’t discussed about the legal sanctions behind such policies as he himself was ambivalent about women’s legal capacities. While following this idea another utilitarian in the later era, John Stuart Mill contradicts and changed this perspective and advocated that the society can be benefited as whole only through gender equality. These thoughts of Mill have been mentioned in his book The Subjection of Women (1869).
H.L.A. Hart another positivist, gave a distinction between primary and secondary rules in order to understand this issue. The primary rules discuss the importance of recognition and enforcement in the approach of International law towards women. While the secondary rules explicitly exemplify that how the treaties and conventions, like Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), creates a legally binding effect on the state and put them under the obligation to promote gender equality. However, many nation states were not willing to accept such treaties and conventions therefore leading it to the tensions between international and domestic laws.
Emerging Feminist views and Critiques to Conservative Thoughts
Dominance Theory of Catherine MacKinnon agues for the transformation of the whole legal structure rather than any reform or amendment in the provisions as these laws have historically seen male dominance and therefore they themselves have been shaped in such manner. According to Catherine the international law need to be more gender neutral and gives identical treatment to men and women hence requires a formal equality but on the other hand it has been criticized on the ground that it lacked to address the systemic disadvantages.
The Rome Statute of the International Criminal Court (1998) categorizes few crimes like rape, sexual violence which included sexual slavery, enforced sterilization and many other which act as a crime against humanity and war crimes, this has greatly been influenced by the work of MacKinnon for international development.
Legal Frameworks
Various institutions and organizations at international level, after being influenced by thoughts of jurists, worked upon recognizing the women’s right at the platform through various conventions, declarations, treaties, agreements etc. Few of them include the UN Charter. The Charter deals with the right to dignity and rights irrespective of the ones sex and gender. While the similar contents has been mentioned under the Universal Declaration of Human Rights hence recognizing the foundation of human rights at international platform.
There are various general assembly and security council resolutions which discuss about the women’s rights and dignity during war times and Resolution 1325 of Security Council (2000) says that the women to be included in the peace negotiations and post conflict reconstructions.
Another major development is the introducing the Convention on the Elimination of All Forms of Discrimination Against Women (1979) which obligates state in deciding matters related to women in terms of economic, social, civil and political spheres. These are also termed as “International Bill of Rights for Women.”
The Beijing Declarations and Platform for Action of 1995 addresses the role and responsibility of states in combating the issues of inequalities in the society therefore requires to set forth few objectives of gender equality in the state’s legislation.
While there are few landmark cases of International Courts which act as precedents in many matter for instance the International Criminal Tribunal for Rwanda held that sexual violence is to be constituted under genocide in the case of Prosecutor v. Akayesu (1998), while The European Court of Human Rights in the case of Opuz v. Turkey, held the State of Turkey liable and accountable for failing to protect women from domestic violence and there are many other leading cases which addresses the issue of women’s right or status at international platform.
Conclusion
Hence it can be concluded that the fight for women rights has been going on since ancient times and has been deeply rooted in various theories of jurisprudence ranging from naturalist theory to positivist theory, from moral principles to legal sanctions. While feminist theories taking influence from early ideas, form their path and advocated for the substantive equality rather than any mere recognition. Although we have advanced technology, great minds, high organizations but still it lacked in the enforcement of the legal instruments that significantly advance the gender equality through justice and removing systemic biases.
Author: Arham Jain is a 3rd-year BA LLB student at Vivekananda Institute of Professional Studies, GGSIPU
