She points out two major problems in the current
setup. She suggests that everything in the current legal framework is
considered in terms of formal equality. The other problem that she points out
is that there is an Idea that state regulation should be restricted to only the
public matters and regulation of the private matters should be left to the
people themselves. She says that justice has been defined in very narrow terms
regardless of the factors that can differ from individual to individual. But in
the eye of the law, everyone is treated the same irrespective of every
She says that ?initially, feminists preferred this
treatment because the laws discriminated against the women and used to subdue
them. But now ?formal equality has become an inadequate tool to deal with the
problem effectively. It does not rectify the underlying inequality which exists
in the society. It is also incapable of providing any solution for challenging
this legal discrimination.
The second major problem that Fineman points out is
the restraint that the state shows when it comes to the implementation of the
equality laws in a practical world. States only regulate these laws within the
public domain but do not interfere when it comes to the private sphere. It is
not a good thing as commonly believed because there is no solution for the
people suffering within the constraints of the private sphere.
?This naïve or hesitant attitude of the state has
increased the difference between those who suffer and those who they make to
suffer, and in this particular context between the dominant male gender and the
oppressed female gender. Law at the moment is only acting to create the
institutions and the laws for the public which comes in the realm of the public
sphere, for example, the law determines the creation and dissolution of the
institute of marriage but does nothing to regulate that marriage on the basis
of daily affairs. Fineman also points out that the bureaucracy is inefficient
and corrupt. So it is important that everyone gets themselves educated and
actively take part in the regulation of the private sphere on some level.
According to Fineman, the definition of vulnerability
should be changed. Everyone is vulnerable, vulnerability is an inevitable
aspect of our lives universally found. Everyone is prone to injury because our
world and society are organized in this way. Regardless of where you live and
who you are, by the virtue of being a human being, you are exposed to being
Fineman also points out that the current system treats
everyone as a liberal subject. Her vulnerability thesis takes into account
people without capacity which liberal subject thesis does not. According to
her, the law should primarily be designed for the vulnerable subject rather
than being centered on formal equality.
In my opinion, the understanding of legal framework
provided by Fineman in context of male domination in the society is very good
but the antidote proposed by her to deal with the problem of patriarchy is quite
impractical. She has a very deep understanding of what the problems of the
legal framework is and from the point of view of a woman affected by the
problems is also very accurate to a great extent. But there are a lot of
problems in this theory due to which I think it will not be practical.
The idea of formal equality that she describes in her
theory may be overlooking the individual needs and demands but there is no way
that the law can be structured in a way that every single person and people
groups in the society can be accommodated equally, this is simply logistically
impossible. The real issue here is to raise the awareness regarding the
inequalities of the system and then come up with an approach that minimizes the
Most of the modern world has adopted the democratic
form of governments and in my opinion, it is the ideal system to get rid of the
legal baggage that we are carrying from the centuries gone by. According to
Fineman’s theory, men will never be able to understand the problems from the
perspective of women because they cannot and do not go through the difficulties
and the problems that women have to go through. So the need of the hour here is
to push for more and more gender equality in the legislature and judiciary.
With time passing by, this approach will eventually lead to a more
gender-neutral tone to the legal framework as it will incorporate the much
needed feminine perspective of law.
I totally disagree with the part of Fineman’s theory
where she suggests that the state should regulate the affairs in the private
sphere because a lot of people are suffering outside the realm of the public
sphere. In relation to the problems of women, it is true that there are a lot
of aspects of the social institutions like the marriage where the women are
getting oppressed and there is little or no way for their suffering to be
stopped. But it will be a total catastrophe if the state starts getting
involved in the private sphere. This approach will lead to infringement of
individual rights like the right to privacy one day if not straight away.
The solution in my opinion to this problem is not to let the state
administer the life in a private sphere but rather the solution should be more
oriented towards making sure that people who are suffering in the private
sphere are legally heard when they decide to bring forth their problems.
Legislation should be done which deals with the private sphere when private
individuals decide to invoke it.