13 December 2012

Zimbabwe: Women Judges Must Stand Up for Marginalised


Women have climbed to the highest apex of judicial power in a number of countries. They have also climbed higher in positions of power in several countries. Both the Chief Justice and Deputy Chief Justice in Zambia as of mid-2012 were female jurists.

The Chief Justice of Nigeria is a female.

The Chief Justice of Canada is female and she has two other female jurists alongside her. The Chief Justice of Sri Lanka as of at the end of 2012 is female.

The US Supreme Court has three female justices.

In 2012, the Congress of the United States elected more women to its Senate than at any other time in the history of that institution. Rwanda's legislature has more than 55 percent women. Women in South Africa have held significant posts in parliament as have women in Canada.

There are female presidents in Germany, Liberia, Malawi, Jamaica, Chile, Brazil and elsewhere.

Given that this is an economically globalised world, where technological knowledge is power, women are posed to increasingly influence the diffusion of knowledge. Whoever controls the technology controls the power. One aspect of technological control, revolves around the influence "intellectual property" ownership engenders. This in turn relates to who controls the law of intellectual property.

Feminism along with Marxist, critical legal studies and critical race theories have mounted serious challenges to the inherited Western legal tradition that has claimed that law is neutral and objective even though law, from time immemorial has neither been class, gender and race neutral nor objective.

There was a time when slaves, poor people, aboriginals, women and blacks could not vote; when women, aboriginals and blacks could not serve on juries or go to school; when women, aboriginals and blacks could not own property; indeed when blacks were property of others themselves; when women could not enter into contracts; when women, aboriginals and blacks could not be lawyers; when blacks could not enter a room or drink water through the door or fountain used by white people; when blacks and aboriginals were enslaved or colonised; when women and black people's evidence in courtrooms was only accorded half the value of evidence given by a white man. Yet law managed to claim and still claims that it is neutral and objective.

The assault of feminism, Marxism, critical legal studies and critical race theorists on the supposed neutrality and objectivism of the Western legal system has to some great extent engendered palpable paradigm shifts and intellectual understandings of the actual designs of the law and along the way, major reforms have occurred: women and black peoples' evidence is accorded on the surface the same weight as that of the white men; anyone can serve on the jury and can vote and go to school and slavery is prohibited; women can enter into contracts and own property.

But there are still major problems experienced by women, aboriginals and the developing world in gaining full and equal recognition and status in the dispensation of intellectual property law.

Feminism is perhaps the most potent intellectual current that is deconstructing this area of legal impairment.

Feminism, Marxism, critical legal studies and critical race theories while aimed at deconstructing the actual design of the law and the purposes served by law and in whose interests and to whose disadvantage law is generally deployed, approach the analysis of law from different situational and experiential perspectives: feminism examines the law from the point of view of the interests of women; Marxism from a class point of view; critical legal studies from power relations point of view and critical race theorists from the point of view of race dynamics.

These systems, however, are not totally exclusive or totally dismissive of other perspectives (though Marxism comes close in dismissing other perspectives and seeks dominance).

Further, within some of these perspectives are contained various strands of thought: in feminism for example, there are Marxist, socialist, radical, conservative and liberal feminisms and other strands that I have just recently encountered, for example, "difference feminism." All these strands emphasise different aspects of concerns within the feminist framework.

While aware of the different strands within feminism, several feminist intellectual property scholars emphasise the need for a clearcut broad dichotomy between female perspectives as a group and the male-oriented and designed legal constructs on the other hand. Only by looking at it in this polar opposite way can the phenomena being examined be brought out in clear and sharper perspective.

Women and men have broadly experienced law differentially.

This includes intellectual property.

While feminism has examined many other areas of the law and exposed their chicanery- family law, criminal law (rape, prostitution and evidence), property law, immigration law, contract law employment law, business law and others, feminism has not looked at the impact of intellectual property law until recently.

But like the other areas of law, intellectual property was male designed and male oriented to the total exclusion of the interests of women. Intellectual property law as designed by men was totally inimical to the interests and nature of women, qua women.

Like many areas of law, intellectual property therefore has gendered aspects. Each of the articles described below gives examples of this gendered nature of intellectual property law.

Burk in "Copyright and Feminism" states that the neglect of intellectual property in feminist analysis is surprising given its increasing prominence and potential impact on the quality of life for millions of men and women across the world.

In another article, Burk, in "Feminism and Dualism" states that intellectual property law constitutes perhaps the primary policy tool by which society influences the development and design of new technologies.

Others have stated that intellectual property is the most potent form of modern imperialism. Intellectual property as it is designed expropriates the inventions and cultural artefacts of not only women but developing countries and aboriginal communities as well, to their disadvantage. So studying and deconstructing intellectual property is of the utmost importance.

Burk answers that "a feminist approach encourages us to ask not so much where such intellectual property doctrines require us to draw the line between creativity that is rewarded and creativity that is not, as it requires us to ask why such criteria was selected in the first instance."

Why is intellectual property designed the way it is: gendered if you look at it from a feminist perspective; class oriented if it is examined from a Marxist perspective; race and culturally and national specific (or developed and developing world-divide) if you examine it from the critical race perspective - a perspective that is inclusive of aboriginal perspective and power-driven if you examine it from the critical legal studies framework? - African Executive.

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