Acts of inequality

Women and the Law

February 27, 1998

Perhaps unsurprisingly, this is a depressing book. It is common knowledge that, while the law can obstruct women's rights to be treated as equal citizens, its role in promoting sex equality has proved limited at best. The hopes of women campaigners throughout the centuries for legal recognition of their membership of the human species have foundered again and again on the rock of male privilege and prejudice, and this has too often been synonymous with both the institution and practice of the law.

Why does this happen? What is it about the legal system which prevents it from being a liberalising force? While some of the answers to these questions may seem self-evident, others require the detailed knowledge demonstrated here by Sandra Fredman. Her central contention is that the institution of the law as it has evolved and been practised in countries such as the UK has imposed, and continues to impose, critical limitations on its potential to be politically transformatory and autonomous. Drawn from what (still) is a patriarchal culture, the law's perspective on women inevitably sees them as outsiders trying to get in. Men are the norm: thus much apparently woman-friendly legislation depends on the unenticing legal notion of the "male comparator". One has only to consider the argument that men should be made equal to women to understand both the limitations of the liberal idea of equality, and the enduring reality of women's oppression.

This reality is very much part of Sandra Fredman's case. She contends that the law has been of limited usefulness as a strategy for liberating women precisely because it has ignored the material basis of women's socially constructed differences from men. Indeed, not only has it ignored these, it has in important senses presumed them. The major site of women's unequal treatment is in the home, in the domains of housework and childcare and caring for others, and these areas of work, deemed "private" within liberal non-interventionist notions of the state, remain obstinately outside whatever it is we as a society might want to do to give women more opportunities than have customarily been available to them.

In order to sustain this argument, two things are necessary. One is to show that, despite recent media constructions of feminism as having passed its sell-by-date, many of the inequalities to which feminists in the 1960s drew attention remain essentially unaltered. For example, women's average earnings are still significantly lower than men's: a leap after the introduction of the Equal Pay Act was not sustained, and the gender gap has narrowed by only 5.9 per cent over 20 years. One obstacle to equal pay is the segregation of women in different occupations. There are no signs that this is decreasing. For example, women made up 96.6 per cent of secretaries in 1971 and almost the same in 1991. The area where the biggest change has occurred is at the professional and managerial end of the scale. This may help to explain the prevailing tendency for middle-class media women to misunderstand what all the fuss is about.

Second, there is the whole question of the social, historical and philosophical origins of the modern legal system, with its blindfolded view of the production/reproduction divide - the empty goal of making women equal to men, when reproduction, as what women do (in a Marxist as well as a narrowly biological sense) lies entirely outside the currency of capitalism. This is neatly illustrated in one of the many fertile examples Fredman quotes in the book - a recent case in which even European law took the view that women on maternity leave could not expect equal pay because reproductive labour has no parallel in the world of masculine paid work. As they are only doing what women do, they can hardly expect proper remuneration for it.

The enduring lesson is, as Fredman so succinctly puts it, that neo-classical economics is one of feminism's greatest enemies. A free enterprise system is not the route to equal opportunity for all. On the contrary, it will systematically disadvantage all those who cannot sell their labour, either because of incapacity or because it is the sort of labour which has a value but not a price, or because those who hold power also have the power to discriminate against those they view as unlike themselves. Lord Denning said it well in an early brush with the Sex Discrimination Act when he referred to the danger that the act might be interpreted so as to obliterate the "natural differences" between men and women.

So what is the lesson of all this? First, Fredman maintains that it is essential to see the law as a means of effecting change because otherwise the danger is that it will do the opposite. Second, we need to see through the mirage: we must understand that the notion of equality operates by negating the value of reproduction to society. Third, what we need is an integrated strategy which includes a range of social, legal and other initiatives. The law may not be a particularly useful instrument on its own, but when taken as part of a wholehearted attempt to restructure gender it is an invaluable ally. Finally, we also need "organised women": that is, women who actively demand changes in institutional structures and a role in bringing these about. This sounds awfully like feminism. As an organised feminist movement is notable for its absence at the moment, we may just have to make do with hope that in the future there will be enough people with a radical enough vision and sufficient political will to adjust both the lens of the law and the landscape within which it operates.

This is a competent book without much innovative theory or insight. But it includes a useful potted history and a sketch of just what has, and has not, been accomplished in terms of changing women's situation.

Ann Oakley is professor of sociology and social policy and director of the social science research unit, London University Institute of Education.

Women and the Law

Author - Sandra Fredman
ISBN - 0 19 876322 0 and 876323 9
Publisher - Clarendon Press, Oxford
Price - £45.00 and £17.99
Pages - 429

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