PRACTICAL APPLICATION OF HOHFELD’S THEORY OF LEGAL CORRELATIONS AND CATHARINE MACKINNON’S RADICAL FEMINISM ON THE SABARIMALA TEMPLE ENTRY CASE
– Kanak Mishra
Abstract
The Sabarimala judgment of September 2018 is considered a path-breaking judgement for its ideals of feminism. The decision has however faced a lot of criticism as well for brining the ambit of religion under legal scrutiny. This article analyzes the Sabarimala case through two theories that are forever considered contemporarily relevant by jurists and scholar alike. Through the first theory of Hohfeld’s Legal Correlations, the aim is to comprehend the legal concepts of rights- no rights and privilege- duty and how they can be understood as jural opposites that guard certain societal structures such as systemic oppression of women. On the application of Hohfeld’s theory it becomes evident that prior to the judgment, the right vested with men to enter the Sabarimala temple’s sanctum had created a no-right for women to enter it. Through the second theory of Catharine Mackinnon’s Radical Feminism, the aim is to understand the prevalence of the Dominance theory and sexual sameness as a critique of patriarchy. Mackinnon’s arguments on the dichotomy between sex and power are significant to grasp the denial of the rights to women solely because women are considered as the ‘second sex’ (Simone de Beauvoir). Through this paper, the author will attempt to analyze the intersection of both these theories to draw meaningful conclusions from the reasoning provided in the judgment. The author will thereby conclude by emphasizing that the progressive underpinnings of the judgment and its future implementation is in fact dependent upon the socio-legal transformation of the Indian jurisprudence especially in light of the changing judicial mindset, that is open to the ideas of feminism and societal reform.
Introduction
This article concerns itself with the application of Wesley Newcomb Hohfeld’s first set of legal concepts on the famous Sabarimala Temple entry case (from now on referred to as ‘Sabarimala case’). The article shall aim to understand and demonstrate the significance of Hohfeld’s legal concepts in today’s scenario, where historical judgments such as the case are being delivered, breaking all the prevalent societal stereotypes.
The application of Hohfeld’s legal concepts shall be accompanied by an analysis using Catharine MacKinnon’s radical feminist position to show, how, the law as a social institution has shaped our society into homogeneous binaries, such that women have become submissive to men’s orders. The motivation behind penning down this article is to gain insight into the broader perspective of gender equality discourse in the country.
The Sabarimala judgment in September 2018 came as a pleasant surprise to feminists. Keeping aside the enforcement of the decision for once, the highest court of the country delivered one of the most liberating judgments of the century. The Sabarimala temple is one of the largest pilgrimage sites in the world and has been under judicial scrutiny for a long time. The case started by the filing of a PIL challenging the age-old practice of barring women aged between 10 to 50 from entering the temple. The final verdict of the case was recently given out by the court declaring such a practice unconstitutional on the grounds of transgressing equality and discrimination against women. Amongst various arguments of religion, menstruation etc., Senior Advocate, Mr. K Parasaran argued in favour of the ban on a baseless ground that women of this age group act as a ‘temptation’ for the male celibate deity. This male chauvinistic argument faced quite a lot of criticism in the final judgment.
Application of Hohfeld’s Theory of Legal Correlations
Hohfeld’s legal concepts have proved out to be quite useful with not just the jurists of his time, but in the present time too. He was intrigued by the idea of rights in rem and rights in personam, in relation to ‘equitable interests’ and thus he envisaged these legal concepts which he hoped would lay down a clear demarcation of both the types of rights and hence contribute in understanding rights in courts. However, as much as Hohfeld had tried that his concepts rule out the possibility of confusions and misunderstandings in the domain of judicial pronouncements, there has always been some amount of scepticism regarding the understanding of his theory by jurists all around the globe. Be it, eminent jurists or other researchers, everyone agrees to the fact that Hohfeld’s legal concepts, as simple as they might sound, are not quite easy to grasp. By the end of this article, hopefully, I will be able to present an opinion of my own, on the same.
His first set of legal concepts are-
Right Privilege
Duty No-Right
The law is always talked about with respect to the rights and obligations it creates to keep a society in order. Similarly, Hohfeld, opined on rights and duties concerning legal relations. He, however, gives quite a wide connotation to ‘rights’ when he says that this term denotes a claim, privilege, power, and immunity. To limit the scope of ‘rights’, he opined that there exists a correlative ‘duty’ which determines the parameters upon which such ‘rights’ can be based. This duty can be thought of as being similar to, although not the same as an ‘obligation’.
The similar nature between both can be established for the likelihood of some ‘bad’ that follows these both. i.e. something bad can happen if at all, a duty or an obligation is breached. Bad could mean a lot of things in the abstract, but, in the context of law and order, such a bad would be any sanction. Thus, the breach of duty could lead to sanctions being imposed. This is true in a country like India, where women were given rape and arrest threats if they tried to violate their duty of not entering the temple.
But the question then arises, as to what is the type of this duty? Is it moral, social, political or Legal? To this extent, Hohfeld clarifies that his conception of duty is limited to such duty as is mandated by the law, i.e. legal duty.
The second set of jural correlatives is privilege-no right. To this, Hohfeld opines that the ‘privilege’ vested with an individual, correlates to the ‘no right’ vested with others. Thus, when men have a right to claim that the women stay out of the temple sanctum, then men have a ‘privilege’ to enter the sanctum. Similarly, men’s right to enter the sanctum is equivalent to the ‘no-right’ of women that the men cannot enter the sanctum. Lastly, men’s right to enter the temple does not create a duty on the part of men not to enter it. An understanding of such logic clearly serves as a testimony to the fact that the agency of women in India is still limited to that of being a mere object in the hands of men, who are the sole bearers of the power baton by way of deciding the duties and rights of women.
Now, to get a complete sense of the term privilege, it is imperative to take into account Hohfeld’s Jural Opposites as well. Understanding the Sabarimala case with the jural opposites of privilege-duty would mean that the privilege vested with men to enter the sanctum is equivalent to the fact that men do not have a duty not to enter the sanctum.
Application of Catharine Mackinnon’s theory of Radical Feminism
This power dynamic occupies a crucial role in Catharine MacKinnon’s theory. She argues how power is determined through sex in society and how women are constantly through the idea of ‘sexual sameness’, which has emerged as a theory and has been time and again asserted and proved by various feminists across the globe. The ‘sameness’ theory basically asks women to “be the same as men”. MacKinnon is aware of the existence of such an argument but expresses her concern over the regulation of female sexuality by society through the weapon of law.
In her piece on “Feminism Unmodified; Discourses on Life and Law” , she addresses this concern by out rightly saying that the subjugation of women has to be looked at, over and above the idea of sexual sameness. Without venturing into the question of why a woman has to be like a man just yet, I would rather delve upon the fact that there is a crystal clear sense of privilege vested within the males in this respect.
This privilege exists with men by way of the dominance which they possess not just concerning sex, but also with respect to the amount of control they exercise in almost everything, whether by choice or without choice. This dominance, which MacKinnon calls as the Dominance Theory, is something to be counted for the subjugation of women, over and above the aspect of sexual sameness.
The repeated reminders to women to be like men in all fields, the comparisons of women’s progress with that of men, and in fact, everything ranging in between is a constant assertion of the male privilege. It establishes men as the torchbearers of the society who determine the right and the wrong, the good and the bad, who grant or refuse women the permission, basically the ones who order and command and the ones who thereby regulate the society ‘they’ created, by the establishing the laws ‘they’ want to serve in ‘their’ benefit.
From time immemorial women have been judged on their sexuality – which is termed as provocative if it is expressed in the least bit, ‘nurturing and caring nature’ – which is meant to guard the private and not venture out in public, appearance – which should be fulfilling of the male gaze, vulnerability – the easy sexual access, passivity – disabled resistance to the male power and softness – which is the possibility of impregnability by something hard.
All these attributes ascribed to women are not just the restricting factors of their agency but are also the qualifying factors for their acceptability in the society, a society which considers sexuality as a form of power, which is based on the sexual dominance of men and the subjugation of women, and thus a society which is based on determining the duties women and the privileges on men respectively.
Comparing the Sabarimala case by the concept of social and political duty (all forms of duty in abstract form) versus legal duty (as propounded by Hohfeld), it can be deduced that what at one point in time may merely be a social duty, can subsequently be transformed into a legal duty following the changing morals, and hence the changing laws of the country. Therefore, further in the course of this article, I aim to discuss the relevance of the recognition of and adherence to a legal duty, over and above social and political duties to protect the law of the land.
The final verdict of the case clearly demarcates the concept of socio-political duty with that of legal duty (Hohfeld’s conception of duty) in as much as it recognizes the changing morality of the society and hence the need to mend the laws in a similar fashion. Therefore, an observation of the way duty-privilege opposition worked before the Sabarimala case points out to the existence of a mere socio-political duty as created by the male-dominated power structure in the society. However, what can be observed now is the precise definition of a legal duty which caters to the feminist morality of the society.
Catharine A. MacKinnon, in her dynamic polemic, addresses the issue of the sexual objectification of women by squinting at the insufficiency of a feminist approach to law. Her piece directly addresses the argument laid down by senior advocate, Mr. K Parasaran that females within the age group of 10-50 years act as a temptation to the celibate deity of the Sabarimala temple.
This argument of a ‘celibate deity’ occupied a significant stake amongst all the other arguments proposed, because this was the only argument which directly affects the male privilege. It is utterly absurd for a section of society to deny some duties to women merely because they are women. This notion does not just perpetuate the rape-culture and biased power hierarchy within heterosexuality but also proves the fact that the understanding of female sexuality is limited to that of the male gaze and nothing further than that.
Such lewd opinions such as that of a woman “asking for it! ” merely because she is a woman or only because she dresses in a particular way. Such comments are actually victim-blaming and impose a severe impediment to the expression of female sexuality which might be termed as licentious, thereby legitimizing the suppression of the agency of women. Thus, this argument on the deity’s celibacy should not have been the parameter for contesting the determination of rights and duties of women in the very first place.
Keeping in mind the law of our country, there exist no rule of law which either explicitly or implicitly forbids men from entering the Sabarimala temple sanctum. In lieu of this, it can be deduced that such a privilege with men is merely a result of the absence of any law barring them from entering the temple. Simply put, it can be argued that some privileges are merely the result of the absence of any law forbidding the same.
It is important to note that while the concept of ‘rights and duties’ go hand in hand with the correlative obligation (liability, punishment or any other sanction), ‘privilege and no-right’ relations do not have any such obligation attached to them. Thus, the duties and obligations laid out by the law are subject to the changing law of the land, just like the law of the land is subject to the changing morality within the society.
The broader picture which this judgment puts forth is the way the legal system is structured. The socio-political duties which are often ascribed to women and the privileges which are blatantly exercised my men is a major cause of concern. As Simon de Beauvoir opines, “Representation of the world, like the world itself, is the work of men; they describe it from their point of view, which they confuse with the absolute truth.”
Our legal system was created by men, and so the principles which the law then sought to achieve were quite male-centric, and the power which the law held back then was also nothing but male domination in its entirety. But the same is being challenged over the years and now, as the position of the law stands is quite different. It still cannot be said that the legal system now is entirely feminist with people like Justice Katju’s beliefs of “A young woman’s body is like a flame; keep away, lest you get burnt.” which he prudently cites from Tulsidas’s Ramcharitmanas.
This inevitably points out to the nature of law in our country which is ultimately shaped by all the rights, duties and privileges revolving around the abstract idea of equality which is similar to the concept of ‘formal equality’ in the sense that it places men and women on the same pedestal. The concept of formal equality stands flawed for the issue of gender discrimination because women first have to be brought on the same front as that of men and then have to be promised equality.
The very fact that women menstruate and get pregnant, and hence, suffer more biologically, should be enough to establish a concept of substantial equality in the law which acknowledges the duties and privileges allocated to women and men accordingly. Thus, to this extent, the objectivity which the law promises, in the garb of gender neutrality is problematic, for it denies women certain privileges which they ought to have owing to their biology.
The pre-existing male privilege is so deeply entrenched into the society that it becomes quite difficult to challenge the same. Even if we rule out the element of challenging patriarchy by labelling it as doable, yet there exists an institutional problem which overemphasizes the differences and sameness between men and women.
Such institutional barriers are often in the form of a social setting or conditioning which moulds and frames the mindset of one and all, such that it becomes inevitable to not give into patriarchy. MacKinnon fears that women lawyers who intend to be unbiased also might contribute towards the male embodied notions through their judgments , and this was slightly seen in Justice Indu Malhotra’s dissent in the Sabarimala case. Her dissent was inclined towards the arguments based on religion which is not sound, not just on constitutional matters, but also on theological issues as well. She takes up the argument of religion to ultimately cite a circular argument against the entry of women inside the temple.
Conclusion
Thus, by the end of this article, I hope that I have done justice to the topic and the subject by the application and analysis of Hohfeld’s legal conceptions and Catharine A. MacKinnon’s feminist theory on the famous Sabarimala Temple entry judgment. Although, I did apply and analyze the theories of Hohfeld and MacKinnon, yet I feel they were both a bit insufficient in theorizing their arguments. On the one hand, although Hohfeld derived the legal concepts from helping in understanding the judicial reasoning better, yet his concepts failed to devise any mechanism by which social and legal policies could be worked out.
Thus, with the way the paternalistic state is structured in today’s scenario, if Hohfeld’s legal conceptions cannot help in policymaking, then they are of limited or no use. Also, Hohfeld’s notion of ‘privilege’ has often been challenged by jurists because it sometimes obscures the distinction between a right and a privilege because the word ‘right’ is more commonly used as compared to privilege. For example, A asserts that she has a right to voice her opinion. This statement is problematic because what A has is not a right, but a privilege in as much as, if she does not express her opinion, then it does not create a duty on others that she speaks. Thus, an analogy drawn on the lines of the problem stated above, it can be said that men enjoy privilege in the garb of their men rights. This assertion of the argument for men rights as a counter to women subjugation is flawed because of the ‘right and privilege argument’ (above). It is also fundamentally wrong to bring up the whole idea of men’s right to picture when women are the ones facing generations of systemic oppression.
MacKinnon, on the other hand, is right on her part to the extent that law is an instrument of change, but she is too optimistic on the point of the incorporation of women’s consciousness-raising into law. The dark reality is that even though we have socially conscious lawyers, yet to uproot the treacherous patriarchy completely, it still seems like a far-fetched dream.
While the judicial pronouncements are inching towards feminism, yet sexism subsists beneath the shadows, even if not blatantly. A testament to this is the law and order enforcement problems that have piled up as the aftermath of this progressive decision. With many of us waiting for the implementation of the Sabarimala decision, the motto of seeking the ‘occasion to disrupt any fixed structures of power that exists within the society’ seems apt enough.