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1 This article was downloaded by: [The University of Manchester Library] On: 09 August 2013, At: 15:24 Publisher: Routledge Informa Ltd Registered in England and Wales Registered Number: Registered office: Mortimer House, Mortimer Street, London W1T 3JH, UK Agenda: Empowering women for gender equity Publication details, including instructions for authors and subscription information: Gender and the Legal system Lillian Artz a a Gender, Health & Justice Research Unit, University of Cape Town, Published online: 03 May To cite this article: Lillian Artz (2009) Gender and the Legal system, Agenda: Empowering women for gender equity, 23:82, 4-8 To link to this article: PLEASE SCROLL DOWN FOR ARTICLE Taylor & Francis makes every effort to ensure the accuracy of all the information (the Content ) contained in the publications on our platform. However, Taylor & Francis, our agents, and our licensors make no representations or warranties whatsoever as to the accuracy, completeness, or suitability for any purpose of the Content. Any opinions and views expressed in this publication are the opinions and views of the authors, and are not the views of or endorsed by Taylor & Francis. The accuracy of the Content should not be relied upon and should be independently verified with primary sources of information. Taylor and Francis shall not be liable for any losses, actions, claims, proceedings, demands, costs, expenses, damages, and other liabilities whatsoever or howsoever caused arising directly or indirectly in connection with, in relation to or arising out of the use of the Content. This article may be used for research, teaching, and private study purposes. Any substantial or systematic reproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in any form to anyone is expressly forbidden. Terms & Conditions of access and use can be found at

2 0 Gender and the Legal system m Y Lillian ~ rtz Downloaded by [The University of Manchester Library] at 15:24 09 August 2013 When I was first approached to be the guest editor of this volume of Women and the Legal System, my immediate impulse was to draw together the research and writing of the usual suspects and, I must admit, my attention was geared towards those who I have worked with in the field of gender-based violence law refom over the past 15 years. My inclination was to also lean towards the inevitable reformist topics of socioeconomic rights, HIV, violence against women and commercial sex work - staple topics within my own lectures in teaching women and the legal system. When the abstracts for this edition came in, the editorial team and I explored an inspiring range of topics submitted by lawyers, activists, students and academic scholars. It was an unenviable task finding the right balance of topics, perspectives and 'voices', or at least the positions that voices came from. Each paper brought a new perspective to the wide range of issues that women in South Africa - and indeed from African states further afield - confront on a daily basis in negotiating their fundamental rights and freedoms. After much debate about the 'relevance' of subjects, opportunities for emerging scholars and emphasising key legal and empirical pieces, the issues of violence, citizenship, access to land, marital rights, pregnancy and culture emerged to shape this edition on women and the legal system. The selection and editorial processes raised two key questions. The first was about whose voices and perspectives this issue would focus on. You will see that they are diverse and the entry points of the essays come from multiple, sometimes competing perspectives. They represent feminism(s) in all its complexit(ies), but are similarly fused with political activjsm and a special sense of urgency for change of the status of women. They are further all intricately and unavoidably tied into transitional politics, reformation of fractured systems of justice and the development of rights-based and constitutionally informed democracy. The second question this process raised relates to women's interactions with and use of the legal system, which both exposes them to the uncertainties of the legal process and can symbolise their emancipation. For many women facing incalculable daily risks of violence and who are impoverished by the lack of access to land, health care and even citizenship, the law has come to represent the promise of material, social and personal security. Or has it? Since the 1994 democratic elections, feminist advocacy has been part of larger democracy- building projects and efforts to ensure women's constitutionally entrenched rights to equality and freedom from violence. This has included legal advocacy work, drafting legislation, monitoring its implementation and efficacy through empirical studies, submissions to government and the courts on women's access to justice and recommending substantive and pragmatic recommendations for reform. Some of this work has promoted a distinct 4 AGENDA

3 shift in both the understanding, from women's perspectives, of the true nature of 'equality', discrimination and violence. These reformist projects have been coupled with research, theoretical work and public interest litigation that - at their core - have aimed to identify the problems within existing laws and to highlight the systemic challenges in dealing with the diverse range of cases entering the justice system. These efforts have not gone without significant criticism from mainstream legal scholars and even within some quarters of the women's sector: considered too 'lawyerly' by some and too atheoretical or overly subjective by others. Yet, South African feminism has not had the luxury of 'the theoretical vs the pragmatic' or 'epistemological projects vs transformative ones', or even, 'to do law or not to do law'. These are dichotomies that cannot be easily related to. During the post-apartheid era, feminist activism and scholarship has had to work hard in providing the state with compelling arguments for the need for criticat changes in the treatment of women within the legal system. This work has resulted in important shifts in a number of substantive and procedural aspects of the law and the legal process. Feminismhsts have had the complex task of ensuring equal rights, without undermining women's roles (imposed or chosen) within the family and society, within a largely hostile political environment. Our efforts have been fragmented, and in some instances, polarised. More sociological and welfarist inclined scholars and activists have argued for a 'bottom up', social development approach for the women's development and equality agenda. This has included working towards increasing women's participation in the political arena, eradicating poverty, improving the general socioeconomic status of women, increasing access to government support grants as well as public education and awareness about gender-based violence. The sentiment about law reform was understandably uncomfortable and not too dissimilar to that articulated by postconflict feminist movements on the rest of the African continent: namely, that it is futile to attempt to affect social change using an inaccessible, deeply masculinist and colonialist legal system. More legally inclined activists have opted to forge ahead with legislative reform, social context training in the criminal justice system, specific legal advocacy projects and public interest litigation to ensure that women's constitutional rights were realised in law and social practice. Of course in reality, the socalled sociologicalhvelfarist and legal projects were not entirely divorced from one another in their attempts to achieve their objectives. In fact, the wide range of 'women's human rights' issues quickly became conflated and women's advocacy initiatives cross-fertilised at all levels; sometimes consciously, sometimes not, but mostly through an ad hoc and incremental 'take what one can when one can get it' approach. Feminismlists have had the complex task of ensuring equal rights, without undermining women's roles (imposed or chosen) within the family and society, within a largely hostile political environment. Of course. the continuously shifting interrogation of what the law means to women and how the law should be used (if at all) in the protection of women from gender-based violence - and opinions as to where feminist activists should position themselves in relation to the legal system - will remain as diverse as feminism is itself. At the very least, the law and related policy can serve to support the interests of victims who come into contact with the criminal justice system. Benson (1989). who discusses the impact of rape law reform shares this contention: even if we label frapel law reform as a symbol, it is a powerful one, as it symbolises and reinforces emerging conceptions concerning the status of women and the right of selfdetermination in sexual conduct (1989:308). Gender and the legal system 6

4 The symbolism of law reform therefore does not have to be benign. The instrumental goals of law reform, like changing attitudes and legitimising through law, is part of a greater social movement in South Africa. South African feminism is faced with numerous questions about our engagement with the law. With legal reforms, in the work towards engendering 'gendered realities' of criminal victimisation and discrimination, are we changing women's experiences with the law? Were the law and criminal justice designed to provide justice or a sort of therapeutic jurisprudence? Can it serve to neutralise the obvious power relations between men and women? The use of force by men on women? The protection of women? Is law a subversive site that undermines and controls women and their sexual identities and freedoms? Are law and criminal justice as rebellious and uncompromising as the patriarchal analysis suggests? Can we simultaneously acknowledge The instrumental goals of law reform, like changing attitudes and legitimising through law, is part of a greater social movement in South Africa the inherently subjugative disposition of the law and argue for the reconstruction of practices within it? In South Africa, even those who generate, or at least strongly align themselves with feminist scholarship (including criminological, socio- anthropological and jurisprudential feminists), are divided about the role of the law in shaping public discourse and improving the lives of women and have continued to use the law (and social policy more broadly) to challenge inequalities and discrimination in law and practice. The distinguishing features of these debates within feminist scholarship, however, are questions about how 'feminist' it is to engage with inherently masculinist systems of justice and, if it is considered a legitimate (feminist) strategy in emancipating women from violence and discrimination, how do we engage with these systems? Reflecting on domestic violence laws, Lewis eta1 (2001 :I051 simplify these questions for the feminist scholar by asking directly: can the law be usefully employed to help women who experience domestic violence achieve 'justice'? to which the following can be added: Is it within the realm of feminist jurisprudence or even the ability of the law to deter, diminish and even curb discrimination and violence against women? Is it a useful tool of intervention or are we working with an intractable system unable to contemplate social and legal equality, even with the most progressive legislation and jurisprudence? Has. feminist 'thinking' and theory on the causes, impact and remedies to inequality, discrimination and violence been adequately reflected in law and practice? Indeed, in post-apartheid South Africa the law and criminal justice have had considerable symbolic importance. The symbolism of the law has served a useful purpose in the South African feminist movement in that it has forced the movement to find a focus and to mobilise itself around it. The importance of law reform in post- apartheid South Africa, with a new Constitution and a Bill of Rights, the repealing of discriminatory apartheid laws, policies and institutions as well as a fragmented justice system could not be ignored by human rights activists. The push for anchoring democracy on effective, equality-based law reform was of urgent priority and has been sufficiently malleable to allow critical feminist contributions towards shaping and developing legal perspectives on termination of pregnancy', equality law2, labour law3, domestic violence4, sexual assault5, maintenances. customary marriages7 and domestic partnershipsa. For those undertaking the analytical approach of 'feminist jurisprudence', it is the interpretation of these laws that needs to be challenged, not the 'law reform' movement itself. 6 AGENDA

5 This might appear to be (in a theoretical sense) a form of libertarian feminism - in that much of the work has focused on 'equality'- which is a narrow definition of feminist jurisprudence. However, feminist jurisprudence, with all its focus on deconstructing the law and reformative strategies through theory and practice, also examines the features of law and society that create and maintain inequality. Like all feminism(s) there are varying and competing perspectives within this theory and not all feminist jurisprudence projects can, or should, be considered non-reformist (read liberal feminism). Some do focus on the core questions of (masculinist) jurisprudence and legal theory, while others are more inclined to interrogate the broader questions of the sociology of law and systems of justice and embed in (or draw from) analyses that use patriarchy as a derivation of theory. Feminist analysis of law, however, needs to reexamine (and separate) its analysis of law (the written law) and the effects of law before it can begin to reconcile them. Indeed, the symbolic nature of the law is a paradox. The law regulates and decides on what should occur 'naturally' or 'morally'. We look to the law to tell us (or to enforce) what is right and what is wrong and for protection from 'wrongs'. We demand that it sends a clear message, but we are sceptical about the role of law and criminal justice as a remedy or agent of justice. The obvious discriminatory practices within law and legal practices demand that a sort of social reengineering takes place; new views, new attitudes and new practices. As our social ideologies change, so does the demand for more realistic laws and criminal justice practices. This is why feminist interrogation of and engagement with the law and criminal justice practice is poignant at this historical time in South Africa. that: Schafran (1995:1068) makes the shrewd point focusing on legislation is seductive because when it passes it produces a "product" that gives an almost tangible sense of accomplishment. Yet laws are no more effective than the judges who interpret, apply, and enforce them. Within South Africa, those adopting the loosely framed approach of feminist jurisprudence - from activist or empirical social science approaches or legal theory - have focused their work on women's experiences with the law and the criminal justice system. These projects have exposed a range of practices within criminal justice that are inherently discriminatory, structurally inadequate and, in terms of substantive law, limited in scope and application. The response to these problems has been to develop a sustainable and relevant praxis that draws on the experiences of women, and victims of discrimination and violence more generally, to not only shift the law to be more responsive to women, but to shift legal paradigms and approaches. These projects have been various and to some extent effective and have included, amongst other reformist approaches: contributing to the (re)drafting of legislation through public submission processes and law reform committee membership, evidence- based policy development and public interest litigation, intervening in precedent-setting cases, training of the judiciary and other criminal justice personnel, as well as shifting the 'ideology' of the law through scholarly work. Engagement with political and legal processes in South Africa is not only necessary, but absolutely critical. It ensures an engaged, informed and scholarly level of analysis in the formulation of the law, the implementation of law and criminal justice reform and serves a useful function in ensuring civil oversight of government policy and practices. Part of feminist activism in South Africa has been about working with government to help shape ideas around criminal justice practice. Empirical and policy research has been worthwhile, instrumental and theory-building. Empirically rigorous critique Gender and the legal system 7

6 has also been necessary in order to hold the state accountable; something also essential to the feminist praxis. The project has not just been about creating law or policy (or deconstructing it), but taking the next step of ensuring its enforcement and providing concrete illustrations of women's structural inequality in relation to it. Accepting that the implementation of seemingly progressive law is partial, subjective and sometimes has invidious results, the role of the law in protecting women from violence and discrimination and in promoting equality cannot simply be dismissed as a misguided effort at shifting social relations. Although feminist campaigns for 'justice' have had mixed results, they have resulted in the establishment of inalienable rights with respect to the social and political life of women in South Afri~a.~ It is easy to forget this and undervalue the role of law and legal institutions in granting and protecting these rights. Moreover, these legally focused efforts to give voice to the reality of women's lives and their engagement with the law gives conversations about law some depth. It creates oppositional positions and even raises ambiguities about the law, which is more than nonengagement with the law and legal systems would do. Footnotes 1. The Choice on Termination of Pregnancy Act of Promotion of Equality and Prevention of Unfair Discrimination Act 4 of Employment Equity Act 55 of 1998 (as well as sections of the Basic Conditions of Employment Act 75 of 1997 and the Labour Relations Act 66 of 1995). 4. Domestic Violence Act 116 of Criminal Law (Sexual Offences) Amendment Act 32 of Maintenance Act 99 of Recognition of Customary Marriages Act 120 of Domestic Partnerships (Issue Paper 17. South African Law Commission). From legal emancipation - during the first wave of feminism - to more contemporary shifts in marriage, divorce and property rights, education and employment. socio-economic rights, equality legislation, reproductive health rights, women's representation in political structures and so on. References Benson M (1989) 'Rape law: A feminist legal analysis' in Medicine and Law, 8. 3: Lewis R. Dobash RE, Dobash RP & Cavanagh K (2001) 'Law's progressive potential: The value of engagement with the law for domestic violence' in Social & Legal Studies 10, 1 : Schafran LH (1995) 'There's no accounting for judges' in Albany Law Review, 58, 4: LILLIAN ARTZ is the Director of the Gender, Health & Justice Research Unit at the University of Cape Town. She is the cditor of Should We Consent?: Rape Law Reform in South Africa and has published over 70 articles, chapters and policy reports relating to domestic violence, sexual offences and sex work, including women's rights to freedom and security, monitoring states and state accountability, judicial interpretation of law, rape and domestic violence during armed conflict and postconflict societies, transitional policing and the intersections between HIV and sexual violence. She has also worked intensively on criminal justice and health care reform in South Africa and other African countries over the past 15 years. This includes partnering with local and regional NGO's to improve research, documentation and advocacy strategies to effect policy change, legal reform and access to justice as well as developing programmes to provide direct services to victims. Her current project work includes monitoring the implementation of South Africa's Sexual Offences Act as well as conducting research and advocacy in relation to domestic homicide, women in prisons, the medicelegal management of domestic violence and sexual offences, and torture and ill treatment in places of detention. Artz received her PhD from Queen's University, Belfast, where she is also a visiting scholar. Lillian.Artz@uct.ac.za 8 AGENDA