When one discusses the idea of patriarchy, it is important to establish what this actually means. In most people's minds, it is the idea of male dominance, and consequently the subordination of women. If this is the true definition, then we can find lots of examples in law of this – Men had all property rights over children in the 18th/19th Centuries, women only became voters after World War Two and even more recently, rape in marriage was not accepted until 1992 with the case of R. However, in more modern times it becomes clear that society is shifting away from this dominance over women, and now perhaps patriarchy in law can be defined as dominance over minority groups of men, for example homosexuals. To answer the question “is law patriarchal”, one needs to establish whether this shift has occurred in law, and that the previous gender roles have in fact been reversed.
[...] Positive discrimination is a clear example of law and society actively detaching themselves from patriarchal ideas. For example women are employed just because they are women and there are promotions just because they are women, regardless of whether a man is a better candidate which is exactly what these feminists campaigned against, when they were being discriminated against in this way. Furthermore, custodial sentences are rare for women. Even though there has been an over all increase in the number of women in prison, more women offenders still receive probation, absolute and conditional discharges.[2] In this sense, although some of the law is still male dominated, for example women are still given harsher sentences for certain criminal offences like murder good example is Myra Hindley), because it is a “moral outrage” that a woman could commit a crime so terrible, there has been and still is continuing to be a rapid shift from male dominance, through equality to female dominance. [...]
[...] If the law is seen by many to be the very root of society, it is alarming that the law is still so far behind it. It is said that we live in a rule of law[11] society and this, if true, is very important. It means that firstly there is a rule of law and not anything else, like morality. Isn't the discrimination of homosexuals a moral issue? Secondly, everyone is to be treated equally under the law this is clearly not happening in cases like Brown and Wilson. [...]
[...] This is perhaps why so few women speak against the feminist movement, and why so few men lobby against this idea of a traditional male. Another important question to consider is whether it is the actual law that is patriarchal or the application of it. As I have discussed there are examples of where the law itself is patriarchal in the Sexual Offences Act 1956 and The Local Government Act 1988 s28, and this perhaps different to what many believe about the law that the law is in itself neutral, but that those who apply it are not. [...]
[...] However, are women still campaigning for equality? In my opinion, feminism may well have gone too far in certain aspects. For example there is rarely equality in custody cases, and it is a widely known fact that mothers have the advantage in these battles. Furthermore, there seems to be no equality between men and women in the cases of abortion a woman can terminate her pregnancy without the permission of the father. In these examples, what is happening today is not a compromise between men and women to extinguish the dominance of men in child cases, but a complete switch of the dominant parties women for men. [...]
[...] The law is without doubt patriarchal in its origin and application towards minority groups of men, but this is to make the assumption that it is acceptable that patriarchy can apply to this group. Even if one does not believe that law can be patriarchal to any men, it can be said that whatever way one looks at it, the law is unequal, and does not apply to everyone. However, when one looks at the origins of patriarchy, and the traditional views of men, it can be argued that patriarchal law fits the cases of minority men very well. [...]
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