The Feminist Methodology: The importance of its application in Law

In general, legal methods are considered basic tools used by lawyers, researchers and legal scholars in order to solve problems that arise in society. As a discipline, legal methodology makes it possible to systematize, define and elaborate techniques and/or procedures for the production of knowledge; Its function is then to guide the research development, providing practical tools that facilitate the task for the researcher.

Beyond the traditional legalist methods, this essay has the purpose of addressing the importance of incorporating feminism into legal methodology, that is, it is intended to justify why the feminist method is useful and necessary in law. Therefore, the text will be divided into four sections: a) feminist vision, b) feminism in law, c) importance of a feminist legal methodology, and d) feminist legal methodology at the international level.

a) Feminist vision

Feminism can be conceived from three meanings: as an idea, as a social movement and as a political movement. As an idea, its origins are ancient, the ideals can be traced back to ancient societies such as Egypt, Greece and Rome[1]. However, feminism as an idea of claiming civil rights materialized until the 18th century, when Christine de Pizan published the book La Ciudad de las Damas.

This is how, based on a historical development, a feminist theoretical framework is being structured that will formally begin in the 18th century with the social struggles that take place in the context of the Industrial Revolution and the French Revolution. Subsequently, feminism will form into three "waves" that will be the product of the weariness of millions of women in the world who reacted to the patriarchal system[2] that has oppressed, violated and discriminated against them throughout of history.

We can formally speak of three waves of feminism, although there are various authors such as Nuria Varela or Rosa Cobo Bedia, who consider that we are already entering a fourth wave, characterized by a series of social movements that are going to change the system, and that They will even criticize the feminist concepts that have been imposed and that only favor those who belong to a certain class, class, and privileged group. According to Carmen Castells, feminism is understood as:

Regarding all those people and groups, reflections and actions aimed at ending the subordination, inequality, and oppression of women and, therefore, achieving their emancipation and the construction of a society in which there is no longer any room for discrimination based on reason for sex and gender.[3]

In general, conceiving feminism as a methodological tool consists of “putting on ultraviolet glasses”[4] and looking at the world from a different perspective, where the class order dominated by patriarchy is criticized. Feminism should not be confused with an exclusive vision of women or with a gender perspective, since although these two originate from feminism they include distinctions between them. On the one hand, the vision of women only considers them in its analysis, while the gender perspective includes the intersectional vision that contemplates various categories such as: sex, gender, race, nationality, religion, among others.

In the words of Nuria Varela “feminism wants to divide the world between women and men and change the established order. That is why it is uncomfortable and annoying for many people (...) feminism fights against intolerance, prejudice and abuse”.[5] In other words, feminism has the purpose of making visible all those Structural actions and conditions that determine the social system and that impose roles on both men and women for its functioning.

b) Feminism in law

Feminist theory, so developed in our time, has taught us that no social phenomenon can be understood if it is not analyzed from a gender perspective. In this sense, to speak of law from a gender perspective, one would have to combat the stereotyped and indifferent arguments that prevent the right to substantive equality from being realized, in which the differences and categories of people are recognized to solve any problem. or social phenomenon that occurs through the legal field.

A first critique that is made from feminism of the law, starts from a conception of men and women as essentially equal, with the same capacities and abilities. It postulates that the problem has been that women have not had the legal capacity and the material possibility to prove it. From this point of view, the accusations of androcentrism that are made to the law are relatively easy to correct since they do not question its basic postulates. It is the exclusion of women from spaces of power, traditionally and historically masculine, that must be reversed.[6]

The objective of feminism in law is to make visible all those androcentric, sexist and misogynistic practices that are imposed both in society and in law, which make it impossible to achieve substantive equality[7[]](# _ftn10) between men and women. It is about criticizing the entire system from the deconstruction of ideas and thoughts established by sexism and that reinforce discrimination, stereotypes and gender roles.

From the feminist current, a general and/or absolute equality between men and women before the law is not sought because equality is biased by masculine experience and interests. On the contrary, the intention is to highlight the differences that exist between them, to later carry out a legal analysis based on those differences, that is, various relevant categories that may influence the description of a social phenomenon must be taken into account.

Feminism does not grant women the same capacity and the same rights as men, on the contrary, based on their differences, it questions all the structures and ideologies that have kept men as the central axis of the human experience. Specifically, the proposal is to deconstruct existing visions, implementing a decolonial feminist vision that questions the deepest aspects of society.

C) Importance of a feminist legal methodology

Now, why is feminist legal methodology necessary? In general, the methodology allows systematizing, defining and developing techniques and/or procedures for the production of knowledge; Then then, the feminist legal methodology allows incorporating the ideologies of feminism in the legal field. It questions the systems that have been created from the patriarchal society, making visible and generating awareness of the subordination oppression that women experience in society and within the law.

A person can be a feminist by adopting an approach that questions all the institutions that build patriarchy, however, if you want to carry out research that addresses a legal and/or social phenomenon, it is necessary to adhere to a methodology, Otherwise, it may not meet its objectives. In other words, being a feminist does not necessarily mean that the legal object or phenomenon to be analyzed is carried out from a gender perspective.

The feminist legal methodology is not complicated, it involves the steps to follow to incorporate feminism in the legal area. In this way, the feminist jurist Alda Facio proposes six steps[8] for its correct application:

1. Before addressing the phenomenon to be analyzed, it is necessary to be aware of the subordination, discrimination and oppression that women experience with respect to men.
2. Identify in the legal text the different ways in which sexism, androcentrism, machismo, misogyny and gender insensitivity are presented.
3. Identify if the woman is present or invisible in the text.
4. Identify the conception or stereotype of the woman that serves as sustenance in the text.
5. Analyze the text taking into account the influence of, and the effects on, the other components of the legal phenomenon
6. Expand and deepen awareness of what sexism is and collectivize it.

If these six steps are taken into account within the legal phenomenon, a more specific feminist analysis can be carried out within the phenomenon to be analyzed. However, the methodology presented does not correspond to specific cases that focus on a specific conflict solution or conflicts, it is rather an analysis in which they generally provide tools to apply the feminist vision in law.

In a patriarchal system, it is not surprising that the legislator, the jurist and the judge have the man/male in mind when they promulgate, apply or interpret the law. Therefore, by applying a feminist methodology in law, the aim is to reach neutrality, in which differential treatment is addressed in an objective and reasoned manner[9].

D) The feminist legal methodology at the international level

At the international level, the feminist legal methodology has become important to analyze the different social phenomena that have occurred in recent years. Institutions and International Organizations such as the Inter-American Commission on Human Rights (IACHR), the International Court of Human Rights (IACHR) and the United Nations Organization (UN), have adopted this methodology within their resolutions, analyzes and recommendations; which is a great advance in terms of gender, since previously, these institutions did not have an awareness of the matter.

Some of the Cases of the I/A Court HR in which feminist legal methodology was integrated are the following:

• Case of the Miguel Castro Castro Prison v. Peru.
• Case of González et al. (“Campo Algodonero”) v. Mexico.
• Case I.V. vs. Bolivia.
• Case of Atala Riffo and Girls v. Chile.
• Case of Artavia Murillo et al. (In vitro fertilization) v. Costa Rica.

The Campo Algodonero judgment is an international benchmark for how the gender perspective should be included in the law; the provisions found in it are a reference not only for Mexico, but for all the States that are in the Inter-American System. Likewise, in said sentence, the Inter-American Court of Human Rights was able to determine what are the parameters to determine, prevent, investigate, prosecute and punish gender violence. In other words, it establishes guidelines to identify when we are facing cases whose motive is gender violence.

Conclusions

The application of feminism in law implies integrating a gender perspective in the analysis of social phenomena. It is about combating the stereotyped and indifferent arguments that prevent the right to substantive equality from being realized, in which the differences and categories of people are recognized regardless of their sex or gender. Feminism does not intend to generalize or grant the same rights to men and women, but to highlight and make visible those factors that may influence a more objective analysis.

It is essential to incorporate feminism into the law to eliminate all those dichotomies that exist in legal matters around men and women. The intention is to put on “ultraviolet glasses” and question the texts that discriminate against and make people invisible because they are women or belong to a certain category. For this reason, adopting a feminist legal methodology is of great relevance so that, step by step, the jurist or researcher is aware of the oppression and discrimination suffered by women in a patriarchal, sexist, misogynist and androcentric system.

The feminist legal methodology has the purpose of providing the researcher with the tools to systematize, define and elaborate techniques in which the patriarchal system immersed in both social and legal phenomena is questioned and deconstructed. Even if you are a feminist and have knowledge of the theories, it is essential to follow the methodology to have greater objectivity in the analysis, and prevent deviations that do not include the feminist vision.

At the national and international level, the feminist legal methodology has been used as a tool to resolve social phenomena and even legal controversies such as the case of relevant judgments of the Inter-American Court of Human Rights.