Law, and norms, and why some change has to be "radical" to happen at all

[jsburbidge]

It's a truism to say that law and social norms do not always coincide.  Law is frequently behind social change -- intellectual property issues at present come to mind; so does the fact that in general statutory criminal offences which get repealed for obsolescence typically get repealed long after they have become obsolete (blasphemous libel was not taken seriously as a charge long before it was removed from the law-books).  It is also sometimes ahead of social change: there's little doubt that texting while driving is probably more dangerous than driving over the statutory alcohol limit, but it would be hard to tell that it was illegal in Ontario by standing at a downtown intersection and counting the offending drivers who pass by.  Some drivers who text may also drink before driving (Hello, Mayor Ford), but probably relatively few of them.

This is never more critical to understand than when dealing with rights.  For virtually all modern theorists, rights are creatures of law.  Even when we claim rights the law does not yet allow (from the suffragettes demands for the vote onward) the demand is for them to become part of the law.

And here we run into a problem: because legal rights may be a proxy for what is actually wanted.

I'm thinking of a post over on Crooked Timber comparing the advance of feminism and gay rights, and the comments that followed it: because what was very clear is that the fundamental issues which any meaningful feminism have to deal with are not definable (practically) as legal rights: they are necessarily demands for underlying social change, which means that they are fundamentally disruptive.

Even if you start with a standard "rights" example, it starts to lead you towards a radically reconfigured society pretty quickly.  Equaity in the workplace requires, among other things, that there be no implicit penalty paid differently by men and women for having a family.  This in turn requires a reasonably equal sharing of child care tasks and other domestic tasks between men and women (because otherwise we are asking an employer to subsidize one partner as compared to the other).  (It probably also requires the abolishing of the more general expectation of A-type devotion to your employer all the time, even off-hours, or you create a situation where couples are even more dis-incentivized (awful word) to have children than they are now.) This in turn requires a social acceptance of an abolition of much of the current divide between what are seen as men's and women's domestic roles. This is reasonably obvious, but it's also fairly obviously something that is happening slowly, if it is happening generally at all (there are certainly pockets of it, but then you can find pockets of almost any altruistic behaviour if your look for it).

(As with many if not most "feminist" examples, carrying this through thoroughly would benefit men as well as women.  It would do so by providing a much better life-work balance (as the HR departments say).)

In other words, the law can provide a certain set of formal guarantees, but there will be subtle and systematic bias within that set unless social, not legal, change also takes place.

But the changes required really to carry through the change are social, not legislatable.  When it comes down to getting people to accept socially and privately that virtually all roles in society are a priori neither specially male nor specially female, law is a pretty useless instrument.

To take another example, violence against women is a result of several factors, some of which can't really be changed (men are typically bigger and stronger than women), some of which apply to all forms of violence but can be changed (social willingness to accept the use of physical force as a means of expression at all), and some of which apply to women in particular.  Among the latter we can point out particularly the tendency to treat women as property[1] (or, more generally, as being of sufficiently lower status), which is a special case of the tendency to see an implicit disparity of power and status between a man and a woman, and always in the man's favour. (This is as much true of models which imply that the man should protect the woman as in those which allow him to thrash her; the damage done by the latter is simply more immediately obvious and less subtle.)

Power and status are not the same, but morph easily into and out of one another.  You can have some sorts of power without status, and some forms of status confer very little power (I have an M.A., which is a form of status; I derive no benefit from it which could be described as power.)  In general, though, the imbalances which flow from SWM status display as power in many situations.

None of this is in any way new.  In fact, it's dispiriting how often it has to be said.

Changing status means changing social perceptions in ways that law cannot manage.  And a lot of people have a great deal invested in the already existing set of structures driving those perceptions.

There's an easy test of the disparity in men's and women's status generally.  "Unisex" always means "females dressing like males".  Women can wear jeans, jackets, ties, trousers; men cannot wear skirts and dresses. (Kilts on Burn's night do not count.  Show up to the office in a standard workplace in a kilt regularly and see what happens.)  There's no obvious reason for this: skirts were fine for Aristotle, Cicero, and Augustine, and have some obvious comfort advantages in some situations.  (Similarly, men were the peacocks in th 18th century as far as bright colours and elaborate preparation went.) The reason is simple: "trading up" in status is accepted, even if considered a little brash in some situations; "trading down" is not.  We will know that the revolution has taken place when all types of clothing are considered equally acceptable to either sex.

(Note, too that addressing the whole structure of disparate treatment built into the fashion and cosmetics industries would have a tremendous impact on society.  Malls like Eaton Centre would be ghost towns if they had the number of women's clothing stores reduced to match the number of men's clothing stores, and fashion is one obvious place where people have been so brainwashed by the commercial conglomerates that they would fight bitterly against them going away.)

I think it's misleading, by the way, to call this patriarchal; it's not,  It's andrarchal.  Patriarchy means a form of society where the authority of society and specifically the state is exercised through the heads of households: like Rome (where a paterfamilias could put to death an adult son if he chose), or the sort of society envisaged by Deuteronomy.  An andrarchal society, on the other hand, merely privileges the rule of men.

So, naturally, the feminist project has not advanced in the way the gay rights project has.  Many of the changes the gay rights movement have pushed for are those the law can provide: marriage rights, employment rights, anti-harassment laws.  Those rights women got years ago. (1986, in Canada, when the Equality Rights provisions of the Charter came into play, although that merely backed up the Human Rights Codes which already supported those rights.  I grant that the US, which has still not passed the ERA, has a problem here.)

The changes necessary to any attempt to institute anything more than formal equality run much deeper.  Many of the simple slogans addressing single points seem easy enough to put in place on their own, but they take root only where underlying attitudes have changed (or at least begun to change) fundamentally.  And I'm afraid I don't see anything like forces arrayed to make this anything other than a very long process.

[1]Not entirely unique, I grant: there are certainly cases of women whose attitude towards "my man" is proprietary especially as regards others.  However, the ramifications of such attitudes are much smaller: I don't think any such woman would be likely to agree that the man therefore should depend on her and receive only an allowance rather than earning his own income.